Common use of Limitations on Restricted Payments Clause in Contracts

Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (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 (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1i) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3iii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2ii), (3iii), (4iv), (5v), (6vi), (7vii), (viii), (ix), (x), (xi) or and (8) xii) of Section 4.11(b)) hereof), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash assets received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified 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 (A1) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) of the Notes or (B2) 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 (other than Disqualified 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxesInvestment, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary with or into the Issuer or any Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, consolidation or merger, and (ii) the aggregate amount of 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 (F) 50% of any cash dividends received by the Issuer or a Restricted Subsidiary after the Issue Date from an Unrestricted Subsidiary, to the extent that such dividends were not otherwise included in Consolidated Net Income. (b) The foregoing provisions shall not prohibit: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 Supplemental Indenture; (2ii) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3iii) other than pursuant to clause (8) viii) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 (3iii), 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 (3iii); (4iv) repurchases of Equity Interests that occur or are deemed to occur (A) upon the exercise of stock options if 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; (5v) Restricted Payments pursuant to the Transactions; (6vi) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0; (7vii) other Restricted Payments in an amount not to exceed $50.0 75.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or; (8) viii) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 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 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 in compliance with Section 4.10 hereof; (xi) cash payments made in lieu of the issuance of fractional shares (whether in connection with the exercise of warrants, options or other securities convertible into or exchangeable 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 (2ii) or (3)(Biii)(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 Issuer will be permitted to classify such payment or other 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 “Permitted Investment”), but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.11 permitting payment or other action (including any payment or other action that constitutes a “Permitted Investment”).

Limitations on Restricted Payments. (a) The Issuer shall 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 shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.01(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 (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (Aa) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including April 1, 1998, and ending on the last day of the Company's fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event 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 Issuer either Company from (x1) as contributions any capital contribution to the common equity Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Issuer Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Issue Date Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (yc) from $86.0 million, which is equal to the issuance and sale aggregate principal amount of Qualified the Company's 6 7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity Interests after prior to the Issue Date, other than plus (A) 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 (Dd) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateJune 9, 1997, an amount (to the extent not included in the computation calculation of the Consolidated Net IncomeIncome referred to in (a)) equal to the lesser of (ix) 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 (iiy) 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 (to the extent not included in the calculation of taxesthe Consolidated Net Income referred to in (a)), plus plus (Ee) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation 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 SubsidiaryPayment 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 (ix) 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) 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 the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit: : (1A) 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 the payment would have complied with without violation of the provisions of this Indenture ; Indenture; (2B) the repurchase, redemption or retirement of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company 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 Equity Interests; Stock; and (3C) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 ) not to exceed $20 million in the aggregate cash consideration paid for all such redemptions shall not exceed since the Issue Date; provided, however, that each Restricted Payment described in clauses (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 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 cash proceeds received of any amounts paid by the Company or contributed 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 paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests "equity value" of the Issuer 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 officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon 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) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make after the Issue Date of Securities of any Restricted Payment series if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3i) the amount of such Restricted Payment (the amount of such Restricted Payment, if other than in cash, will be determined by the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b))the Securities of any series, exceeds the sum of: (1) $100,000,000, plus (2) 50 percent of the “Restricted Payments Basket”) of (without duplication): (A) 50% of Company's Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available since January 1, 1997 (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% 100 percent of such aggregate deficit), plus plus (B3) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) derived from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company and its Restricted Subsidiaries that is not Disqualified Stock (other than (A) any such proceeds which are used a sale 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 (CCompany) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to after the Issue Date is reduced on of Securities of any series but only to the Issuer’s balance sheet upon the conversion or exchange extent not applied under clause (other than by a Subsidiary d) of the Issuerdefinition of "Restricted Payment" set forth in Section 1.02 hereof, plus (4) into Qualified Equity Interests (less 100 percent of the principal amount of any cashIndebtedness of the Company or a Restricted Subsidiary that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, or plus (5) 100 percent of the fair value of assets, distributed aggregate amounts received by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange)the sale, plus (D) in the case of the disposition or repayment liquidation (including by way of or return on dividends) of any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (but only to the extent (x) not included in the computation of Consolidated Net IncomeSection 6.12(a)(i)(2) equal to the lesser of (i) 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 above and (iiy) that the amount making of such Investment that was treated as constituted a Restricted PaymentInvestment made pursuant to this Section 6.12(a)(i), in either case, less the cost plus (6) 100 percent of the disposition principal amount of, or if issued at a discount the accreted value of, any Indebtedness or other obligation that is the subject 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibit: (1) the payment guaranty by the Issuer or any Restricted Subsidiary of any dividend 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 redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 Company which is released after the Issue Date of Qualified Equity Interests Securities of the Issuer to its officersany series, directors or employees that have not been applied but only to the payment extent that the granting of such guaranty constituted a "Restricted Payments pursuant to this clause (3), plus (C) Payment" under 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 definition set forth in an amount not to exceed $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month periodSection 1.02 hereof; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1i) a A Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3ii) the The amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2ii), (3iii), (4iv), (5v), (6vi), (7viii), (ix) or (8) x) of Section 4.11(b6.09(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A1) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on from the beginning of the first day of the fiscal quarter in which commencing after the Issue Date occurs to and including the last day end of the Issuer’s most recently ended fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B2) Subject to Section 6.09(b)(ii), 100% of the aggregate net cash proceeds received by the 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 Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) of the Notes or (Ba) any such proceeds or assets received from a Subsidiary of the Issuer; (b) Excluded Contributions; or (c) Designated Preferred Stock, plus (C3) the 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 exchangeexchange (other than payments of interest with respect thereto), plus (D4) in In the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (E5) upon 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall will not prohibit: (1i) the The payment by the Issuer or any Restricted Subsidiary of any dividend or the consummation of any redemption within 60 days after the date of declaration thereofof the dividend or giving or any redemption notice, if on the date of declaration or notice, the payment or redemption would have complied with the provisions of this Indenture Indenture; (2ii) The making of any 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 Issuer) of, 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 Equity Interests or from contributions to equity capital of the Issuer under this clause (ii) shall not be included for purpose of calculating amounts under Section 6.09(a)(ii)(2); (iii) The redemption of any Equity Interests 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, 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 6.08 and the other terms of this Indenture; (3iv) other than pursuant Payments by the Issuer to clause (8) below, the redemption of redeem Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided provided, that the aggregate cash consideration paid for all such redemptions shall not exceed the sum of (A) $5.0 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 (3iv), 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 (3iv); (4v) repurchases 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 that occur or are (i) deemed to occur upon the exercise of stock options if 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 represents to the extent such Equity Interests represent a portion of the exercise price thereofof 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; (5vii) 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; (6xii) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 and distributions to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that Restricted Payments made 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 clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month periodIndenture, including Article Seven hereof; or (8) the purchase or retirement of Class B Common Stock xiii) Repurchases of the Issuer from Notes; provided, that (a) in the case of any Permitted Holder in an aggregate amount not Restricted Payment pursuant to exceed $10.0 million in any twelve-month period; provided that clause (iii)(c) above, no proceeds from the 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 clause (2ii), (iii) or (3)(Biv)(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 (i) through (xiii) of Section 6.09(b) hereof, or is entitled to be incurred pursuant to Section 6.09(a) hereof, the Issuer will be entitled to classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any manner that complies with this Section 6.09.

Limitations on Restricted Payments. (a) The Issuer Parent shall not, and shall not permit any Restricted Subsidiary (including the Issuer) to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer Parent cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio ExceptionIncurrence Leverage Ratio; or (3) the amount of such Restricted Payment, (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors) when added to the aggregate amount of all other Restricted Payments made after the Initial Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (Aa) 50% of Consolidated Net Income of the Parent and its Restricted Subsidiaries (including the Issuer) for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Initial Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are internally available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (Bb) 100% of the aggregate net cash proceeds received by the Issuer Parent either (x) as contributions to the common equity of the Issuer Parent after the Initial Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Initial Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(cSection 6(b) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerSubsidiary, plus (Cc) the aggregate amount by which Indebtedness incurred by the Issuer Parent or any Restricted Subsidiary (including the Issuer) subsequent to the Initial Issue Date is reduced on the IssuerParent’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests of the Parent (less the amount of any cash, or the fair value of assets, distributed by the Issuer Parent or any Restricted Subsidiary to a Person other than the Parent or a Restricted Subsidiary upon such conversion or exchange), plus (Dd) in the case of the disposition or repayment of or liquidated return on any Investment that was treated as a Restricted Payment made after the Initial Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (Ee) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the IssuerParent’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerParent’s Investments in such Subsidiary to the extent such Investments prior to such Redesignation had reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) . The foregoing provisions provisions, which shall be given independent effect in whole or in part, shall not prohibit: (1) the payment by the Issuer Parent or any Restricted Subsidiary (including the Issuer) of any dividend 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 Indenture; (2) the redemption of any Equity Interests of the Issuer Parent or any Restricted Subsidiary (including the Issuer) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or of a substantially concurrent capital contribution to the Parent; provided that any proceeds from the issuance and sale of such Qualified Equity Interests shall be excluded from the calculation of the Restricted 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; , (3b) 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 than 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 clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or servicerelevant offer prior to redeeming such Subordinated Indebtedness; 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 such Qualified Equity Interests shall be excluded from the calculation 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)Basket; (4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options options, warrants and other similar rights to acquire Equity Interests if the Equity Interests represents represent a portion of the exercise price thereof, or payments made pursuant to the “Buy-In” provisions of the warrants (or any successor warrants thereto) issued on the Initial Issuance Date; (5) Restricted Payments the repurchase of Equity Interests of the Parent (including options, warrants or other rights to acquire such Equity Interests) from employees, former employees, directors, former directors, officers, former officers, consultants or former consultants of the Parent or any of its Subsidiaries (or Heirs or other permitted transferees of any of the foregoing), pursuant to the Transactions;terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Parent (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 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 $50.0 million; provided such that the sum of the aggregate amount of Restricted Payments made pursuant to this clause (76) shall after the Initial Issue Date does not exceed $25.0 million 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 the aggregate in any twelve-month periodaccordance with Section 4.06; orand (8) transactions pursuant to, in connection with, or contemplated by the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; Purchase Agreement. provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B3)(a) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall 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 shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added 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 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 clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (Aa) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including April 1, 1998 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (Bb) 100% of the aggregate net cash proceeds pro- ceeds of and the fair market value of Property received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Issuer Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Issue Date Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (yc) from $86.0 million, which is equal to the issuance and sale aggregate principal amount of Qualified the Company’s 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company’s Common Equity Interests after prior to the Issue Date, other than plus (A) 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 (Dd) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateJune 9, 1997, an amount (to the extent not included in the computation calculation of the Consolidated Net IncomeIncome referred to in (a)) equal to the lesser of (ix) 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 (iiy) 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 (to the extent not included in the calculation of taxesthe Consolidated Net Income referred to in (a)), plus plus (Ee) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation 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 SubsidiaryPayment 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 (ix) 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) 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 the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit: : (1A) 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 the payment would have complied with without violation of the provisions of this Indenture ; Indenture; (2B) the repurchase, redemption or retirement of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company 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 Equity Interests; Stock; and (3C) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 ) not to exceed $20 million in the aggregate cash consideration paid for all such redemptions shall not exceed since the Issue Date; provided, however, that each Restricted Payment described in clauses (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 and (B) of this sentence shall be taken into account for 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 cash proceeds received of any amounts paid by the Company or contributed 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 Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests “equity value” of the Issuer 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 officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon 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) The Issuer shall and the Co-Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if unless, at the time of and after giving effect to such Restricted Payment: (1) a no Default or Event of Default shall have occurred and be continuing or shall would occur as a consequence thereofof such Restricted Payment; (2) the Issuer cannot would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable Four-Quarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made by the Issuer, the Co-Issuer and the Restricted Subsidiaries after the Issue Date (other than Restricted Payments made pursuant to clauses (2Section 4.11(b)(2), (3Section 4.11(b)(3), (4Section 4.11(b)(4), (5Section 4.11(b)(5), (6Section 4.11(b)(6), (7) Section 4.11(b)(8), or (8) of Section 4.11(b4.11(b)(9)), exceeds is less than the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income of the Issuer for the period (taken as one accounting period) commencing on the first day of the first full fiscal quarter in which commencing after the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds and the fair market value, as determined in good faith by the Board of Directors of the Issuer, of property and marketable securities, received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date (other than (i) by a Restricted Subsidiary, (ii) any Disqualified Equity Interests, (iii) Designated Preferred Stock and (iv) cash proceeds applied to Restricted Payments made in accordance with Section 4.11(b)(4)) or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, in each case, other than (A) any such proceeds which are used (x) to redeem Notes in accordance with paragraph 5(c) Section 6 of the Notes or (By) any such proceeds to make Restricted Payments in reliance on Section 4.11(b)(3) or assets received from a Subsidiary of the IssuerSection 4.11(b)(4), plus (C) the aggregate amount by which Indebtedness incurred by (other than any Subordinated Indebtedness) of the Issuer, the Co-Issuer or any Restricted Subsidiary subsequent to the Issue Date 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received in cash and the fair market value, as determined by the Board of Directors of the Issuer or any Restricted Subsidiary in cash or other good faith, of property (valued at and marketable securities received after the Fair Market Value thereof) as Issue Date and representing the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxestaxes or (y) the sale (other than to the Issuer, the Co-Issuer or a Restricted Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall will not prohibit: (1) 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 declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Indenture; (2) the redemption redemption, repurchase, retirement or other acquisition of any Equity Interests of the Issuer, the Co-Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) the redemption, repurchase, retirement or other than pursuant to clause (8) belowacquisition of Subordinated Indebtedness of the Issuer, the redemption 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 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 Equity Interests for purposes of Section 4.11(a)(3)(B) and will not be considered to be net cash proceeds from a Qualified Equity Offering for purposes of the provisions described under Section 6 of the Notes; (4) payments to redeem Equity Interests of the Issuer Issuer, held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates)) thereof, upon their death, disability, retirement, severance or termination of employment or serviceservice pursuant to 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 provided, that the aggregate cash consideration paid for all such redemptions amount of Restricted Payments under this clause (4) shall not exceed (A) $5.0 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 since 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 the terms of clause 3(b) of the preceding paragraph or this clause (34), 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 (34), 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; (45) (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 (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) 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 that occur or are deemed to occur upon the exercise or conversion of stock options or other Equity Interests, if the such repurchased or converted Equity Interests represents represent a portion of the exercise price thereof; (5) Restricted Payments 8) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to the Transactions; 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 (6) Restricted Payments if after giving effect thereto or a third party to 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 $50.0 million; provided that Restricted Payments made pursuant to extent permitted by this clause (7Indenture) 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 exceed $25.0 million withdrawn in the aggregate in any twelve-month periodconnection with such Change of Control Offer, Net Proceeds Offer or Loss Proceeds Offer; or (8) the purchase or retirement 9) additional Restricted Payments of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million million; provided, that (a) in the case of any twelve-month period; provided that Restricted Payment pursuant to clause (3), (4), (5)(b), (6), (8) or (9) of this Section 4.11(b), no proceeds from the 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 clause (2), (3) or (3)(B4) above of this Section 4.11(b) shall increase the Restricted Payments Basket. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (1) through (9) of this Section 4.11(b) or is entitled to be made pursuant to Section 4.11(a), the Issuer shall, in its sole discretion, classify or reclassify such Restricted Payment into one or more exceptions.

Limitations on Restricted Payments. (a) The Hovnanian and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.05(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 (other than Restricted Payments made pursuant to clauses (2)May 4, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds 1999 does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of Hovnanian on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 1999 and ending on the last day of the Hovnanian’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Hovnanian from (x1) as contributions any capital contribution to the common equity of the Issuer Hovnanian after the Issue Date February 1, 1999 or (y) from the issuance and any issue or sale after February 1, 1999 of Qualified Equity Interests after the Issue Date, Stock (other than (A) to 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 Hovnanian) and (2) the Issuerissue or sale after February 1, 1999 of any Indebtedness or other securities of Hovnanian convertible into or exercisable for Qualified Stock of Hovnanian that have been so converted or exercised, as the case may be, 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 that was treated as constituting a Restricted Payment made after the Issue DateMay 4, 1999, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) 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 Consolidated Net Income referred to in (A)), plus (D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after May 4, 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 the Issue Date, and net only to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), an amount equal to the lesser of (x) the proportionate interest of 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 designation as an Unrestricted Subsidiary, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary$17 million, the lesser of minus (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (iiF) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (iii) of paragraph (b) below) made after February 1, 1999 through May 4, 1999. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture the Indenture; (2ii) the repurchase, redemption or retirement of any Equity Interests shares of the Issuer or any Restricted Subsidiary Capital Stock of Hovnanian in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of Hovnanian) of, other shares of Qualified Equity Interests;Stock; and (3iii) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Hovnanian or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of Hovnanian 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 10 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.since May 4, 1999;

Limitations on Restricted Payments. Until the Notes are rated Investment Grade by both Rating Agencies, after which time the following covenant no longer shall be binding on the Company or any Restricted Subsidiary: (a) The Issuer shall not, and shall not permit neither the Company nor any of its Restricted Subsidiary toSubsidiaries shall, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment, if, after giving effect thereto on a pro forma basis: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2i) the Issuer canCompany could not incur Incur $1.00 of additional Indebtedness indebtedness pursuant to the Coverage Ratio Exceptionprovisions described in paragraph (b) of Section 5.02 hereof; (ii) a Default or an Event of Default would occur or be continuing; or (3iii) the aggregate amount of all Restricted Payments, including such proposed Restricted Payment, made by the Company and its Restricted Subsidiaries, from and after the Issue Date and on or prior to the date of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds shall exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on with the first day of the full fiscal quarter in which includes the Issue Date occurs Date, to and including the last day of the fiscal quarter ended immediately prior to the date of such each calculation for which consolidated internal financial statements are available (or, if such Consolidated Net Income shall be a deficitfor such period is negative, then minus 100% of such aggregate deficit), ; plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity amount of any Indebtedness of the Issuer Company or a Restricted Subsidiary Incurred after the Issue Date that is converted into or (y) from exchanged for Qualified Capital Stock of the issuance and sale of Qualified Equity Interests Company after the Issue Date, other than (A) 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) to the aggregate amount by which Indebtedness incurred by the Issuer or extent that any Restricted Subsidiary subsequent Investment made after the date of this First Supplemental Indenture is sold for cash or otherwise reduced or liquidated or repaid for cash, in whole or in part, the lesser of (1) the cash return of capital with respect 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 such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of any cash, or the fair value of assets, distributed by the Issuer or any such Restricted Subsidiary upon such conversion or exchange), Investment; plus (D) in the case unless accounted for pursuant to clause (B) above, 100% of the disposition 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 repayment issuance (other than to a Subsidiary of the Company) of its Qualified Capital Stock after the Issue Date and on or return on prior to the date of such Restricted Payment; plus (E) with respect to any Investment Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after 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 the Issue Date, an amount (Date and only to the extent not included in the computation calculation of Consolidated Net Income) ), an amount equal to the lesser of (ix) the book value in accordance with GAAP of the Company’s or a Restricted Subsidiary’s Investment in such Subsidiary, and (y) the Designation Amount at the time of such Subsidiary’s designation as an Unrestricted Subsidiary; plus (F) 100% of tax benefits, if any, for the aggregate amount received period (taken as one accounting period), commencing with the first full fiscal quarter which includes the Issue Date, realized by the Issuer or any Restricted Subsidiary in cash or other property (valued at Company from stock option exercises and from the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost issuance of the disposition of such Investment and net of taxes, 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 (EG) 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 Restricted Payments Basket and were not previously repaid or otherwise reduced$50,000,000. (b) The foregoing provisions shall clause (a) does not prohibit: (1i) 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 the payment would have complied in compliance with the provisions of this Indenture foregoing provisions; (2ii) the redemption payment of cash dividends or other distributions to any Equity Interests 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, as provided for in the documentation governing such joint venture), as the case may be; (iii) repurchases or redemptions of Capital Stock of the Issuer 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 any Restricted Subsidiary the retirement in Indebtedness of the Company, in exchange for, for or out of the proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, other shares of its Qualified Equity Interests; (3) other than pursuant to clause (8) below, Capital Stock and the redemption retirement of Equity Interests Capital Stock or Indebtedness of a Restricted Subsidiary in exchange for or out of the Issuer held by officersproceeds of a substantially concurrent sale of its Qualified Capital Stock, directors or employees or former officersprovided that, directors or employees (or their transfereesin each case, 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 such proceeds received is excluded for purposes of clause (a)(iii)(D) above; or (v) repurchases by or contributed to the Issuer from the issuance and sale after the Issue Date Company of Qualified Equity Interests Capital Stock of the Issuer to its officers, Company (from Persons other than officers or 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; (5Company) Restricted Payments pursuant in one or more open market and/or privately negotiated transactions of up to $85,000,000 in the Transactions; (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 aggregate at any time or from time to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 milliontime on or before March 31, 2002; provided that Restricted Payments any such repurchases not made pursuant to this clause (7v) 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 Basket. In calculating the Basket, any Restricted Payment not made in cash and any non-cash amounts received for purposes of clause (D) shall not exceed $25.0 million be valued at fair market value as determined in good faith by the aggregate in any twelve-month period; or (8) Board of Directors, whose determination shall be conclusive and whose resolution with respect thereto shall be delivered to the purchase or retirement of Class B Common Stock of Trustee promptly after the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketadoption thereof.”

Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could Incur at least $1.00 of Ratio Indebtedness pursuant to Section 4.06(a); 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 on or after the Issue Date May 10, 2011 (other than those Restricted Payments made pursuant to clauses (2described in Section 4.07(b)(iii) through Section 4.07(b)(xiii), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including October 1, 2013 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of any Property or other asset received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity Company after May 10, 2011 or any issue or sale after May 10, 2011 of the Issuer after the Issue Date or (y) from the issuance and sale of any Qualified Equity Interests and (2) the issue or sale after the Issue DateMay 10, 2011 of any Indebtedness or other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) securities of the Notes Company convertible into or (B) any such proceeds exercisable for Qualified Equity Interests that have been so converted or assets received from a Subsidiary of the Issuerexercised, 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 a distribution on or disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue DateInvestment, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in clause (A)) equal to the lesser of (ix) 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 Equity Interests) and (iiy) 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 (to the extent not included in the calculation of taxesConsolidated Net Income referred to in clause (A)), plus (ED) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation Restricted Subsidiary after May 10, 2011 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 SubsidiaryPayment made after May 10, 2011, and only to the extent not included in the calculation of Consolidated Net Income referred to in clause (A)), an amount equal to the lesser of (ix) the proportionate interest of the Company or 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 the Issuer’s proportionate interest such Unrestricted Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the aggregate amount Designation Amount at the time of the Issuersuch Unrestricted Subsidiary’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduceddesignation as an Unrestricted Subsidiary. (b) The foregoing provisions shall Section 4.07(a) will not prohibit: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend or redemption of any Equity Interests or Subordinated Indebtedness within 60 days after the date of declaration thereofthereof or call for redemption if, if on at such date of declaration or call for redemption, such payment or redemption was permitted by the provisions of the preceding paragraph as of the date of declaration (and the payment would itself will be deemed to have complied with the provisions been paid on such date of this Indenture declaration); (2ii) any Restricted Payment made in exchange for, or out of the net proceeds of the substantially concurrent sale of, Qualified Equity Interests; (iii) the redemption purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value by the Company of any Equity Interests Subordinated Indebtedness of the Company, the Corporate Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsRefinancing Indebtedness Incurred as permitted by and in compliance with Section 4.06; (3iv) 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, distribution or sale)) of $50,000,000; (v) [Reserved]; (vi) Restricted Payments made after the Issue Date in respect of Specified Obligations not to exceed $70,000,000; provided, however, that such Restricted 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 pursuant payments with respect to clause Specified Obligations); (8) below, viii) [Reserved]; (ix) the redemption declaration and payment of dividends to holders of any class or series of Disqualified Equity Interests of the Issuer held Company or any of its Restricted Subsidiaries issued in accordance with and to the extent permitted by officersSection 4.06; provided, directors or employees or former officershowever, directors or employees that, at the time of payment of such dividend, no Default shall have occurred and be continuing (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 (3result therefrom); (4x) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock equity options or warrants if the such Equity Interests represents represent a portion of the exercise price thereofof such options or warrants; (5xi) Restricted Payments pursuant to the Transactionsthat are made with Excluded Contributions; (6xii) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions similar to those described in 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 (xiii) Restricted Payments if Investments after giving effect thereto the Issuer’s Net Leverage Ratio is not greater Issue Date in joint ventures (other than 3.0 to 1.0; (7amounts expended in respect of Specified Obligations) other Restricted Payments 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 $50.0 million; provided that Restricted Payments 100,000,000 (any Investment made pursuant to this clause (7xiii) shall not exceed $25.0 million in being 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 twelve-month period; or (8) the purchase Person that was initially treated as a Restricted Payment and which was subsequently terminated or retirement expired, net of Class B Common Stock any amounts paid by either of the Issuer from Issuers or any Permitted Holder Restricted Subsidiary in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale respect of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above such guarantee, shall increase the Restricted Payments Basketbe deducted.

Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (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 (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c6(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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 $50.0 millionmillion 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 in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. Until the Notes are rated Investment Grade by both Rating Agencies, after which time the following covenant no longer shall be binding on the Company or any Restricted Subsidiary: (a) The Issuer shall not, and shall not permit neither the Company nor any of its Restricted Subsidiary toSubsidiaries shall, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment, if, after giving effect thereto on a pro forma basis: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2i) the Issuer canCompany could not incur Incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exceptionprovisions described in paragraph (b) of Section 5.02 hereof; (ii) a Default or an Event of Default would occur or be continuing; or (3iii) the aggregate amount of all Restricted Payments, including such proposed Restricted Payment, made by the Company and its Restricted Subsidiaries, from and after the Issue Date and on or prior to the date of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds shall exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on with the first day of the full fiscal quarter in which includes the Issue Date occurs Date, to and including the last day of the fiscal quarter ended immediately prior to the date of such each calculation for which consolidated internal financial statements are available (or, if such Consolidated Net Income shall be a deficitfor such period is negative, then minus 100% of such aggregate deficit), ; plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity amount of any Indebtedness of the Issuer Company or a Restricted Subsidiary Incurred after the Issue Date that is converted into or (y) from exchanged for Qualified Capital Stock of the issuance and sale of Qualified Equity Interests Company after the Issue Date, other than (A) 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) to the aggregate amount by which Indebtedness incurred by the Issuer or extent that any Restricted Subsidiary subsequent Investment made after the date of this First Supplemental Indenture is sold for cash or otherwise reduced or liquidated or repaid for cash, in whole or in part, the lesser of (1) the cash return of capital with respect 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 such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of any cash, or the fair value of assets, distributed by the Issuer or any such Restricted Subsidiary upon such conversion or exchange), Investment; plus (D) in the case unless accounted for pursuant to clause (B) above, 100% of the disposition 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 repayment issuance (other than to a Subsidiary of the Company) of its Qualified Capital Stock after the Issue Date and on or return on prior to the date of such Restricted Payment; plus (E) with respect to any Investment Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after 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 the Issue Date, an amount (Date and only to the extent not included in the computation calculation of Consolidated Net Income) ), an amount equal to the lesser of (ix) the book value in accordance with GAAP of the Company’s or a Restricted Subsidiary’s Investment in such Subsidiary, and (y) the Designation Amount at the time of such Subsidiary’s designation as an Unrestricted Subsidiary; plus (F) 100% of tax benefits, if any, for the aggregate amount received period (taken as one accounting period), commencing with the first full fiscal quarter which includes the Issue Date, realized by the Issuer or any Restricted Subsidiary in cash or other property (valued at Company from stock option exercises and from the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost issuance of the disposition of such Investment and net of taxes, 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 (EG) 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 Restricted Payments Basket and were not previously repaid or otherwise reduced$50,000,000. (b) The foregoing provisions shall clause (a) does not prohibit: (1i) 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 the payment would have complied in compliance with the provisions of this Indenture foregoing provisions; (2ii) the redemption payment of cash dividends or other distributions to any Equity Interests 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, as provided for in the documentation governing such joint venture), as the case may be; (iii) repurchases or redemptions of Capital Stock of the Issuer 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 any Restricted Subsidiary the retirement of Indebtedness of the Company, in exchange for, for or out of the proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, other shares of its Qualified Equity Interests; (3) other than pursuant to clause (8) below, Capital Stock and the redemption retirement of Equity Interests Capital Stock or Indebtedness of a Restricted Subsidiary in exchange for or out of the Issuer held by officersproceeds of a substantially concurrent sale of its Qualified Capital Stock, directors or employees or former officersprovided that, directors or employees (or their transfereesin each case, 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 such 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 Basket. In calculating the Basket, any Restricted Payment not made in cash proceeds and any non-cash amounts received for purposes of clause (D) shall be valued at fair market value as determined in good faith by or contributed the Board of Directors, whose determination shall be conclusive and whose resolution with respect thereto shall be delivered to the Issuer from the issuance and sale Trustee promptly 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 adoption 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Company and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could incur at least $1.00 of Indebtedness pursuant to Section 4.06(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 (other than Restricted Payments made pursuant to clauses (2)May 4, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds 1999 does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 1999 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity of the Issuer Company after the Issue Date February 1, 1999 or (y) from the issuance and any issue or sale after February 1, 1999 of Qualified Equity Interests after the Issue Date, Stock (other than (A) to 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 IssuerCompany) and (2) the issue or sale after February 1, 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 (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 that was treated as constituting a Restricted Payment made after the Issue DateMay 4, 1999, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) 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 Consolidated Net Income referred to in (A)), plus (D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after May 4, 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 the Issue Date, and net only to the extent not included in the calculation of taxesConsolidated 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 (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary$17 million, the lesser of minus (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (iiF) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (iii) of paragraph (b) below) made after February 1, 1999 through May 4, 1999. (b) The foregoing provisions shall clauses (ii) and (iii) of paragraph (a) will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture the Indenture; (2ii) the repurchase, redemption or retirement of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company 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 Equity Interests;Stock; and (3iii) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 ) not to exceed $10 million in the aggregate cash consideration paid since May 4, 1999; provided, however, that each Restricted Payment described in clauses (i) and (ii) of this sentence shall be taken into account for purposes of computing the aggregate amount of all such redemptions shall not exceed Restricted Payments pursuant to clause (Aiii) $5.0 million during any calendar year of the immediately preceding paragraph. (with unused c) For purposes of determining the aggregate and permitted amounts being available to be used in the following calendar yearof Restricted Payments made, but not in any succeeding calendar year) plus (B) 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 cash proceeds received of any amounts paid by the Company or contributed 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 paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests “equity value” of the Issuer 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 officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon 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) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2) through (7), (38) (with respect to non-cash dividends only), (4), 10) and (5), (6), (711) or (8) of Section 4.11(b)4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (Ai) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first (1st) day of the first full fiscal quarter in which commencing after the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (Bii) 100% of the aggregate net proceeds, including cash proceeds and the Fair Market Value of 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 Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) Section 6 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes, 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 Issuer delivers 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.Trustee:

Limitations on Restricted Payments. (a) The Hovnanian and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.05(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 (other than Restricted Payments made pursuant to clauses (2)May 4, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds 1999 does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of Hovnanian on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 1999 and ending on the last day of the Hovnanian’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Hovnanian from (x1) as contributions any capital contribution to the common equity of the Issuer Hovnanian after the Issue Date February 1, 1999 or (y) from the issuance and any issue or sale after February 1, 1999 of Qualified Equity Interests after the Issue Date, Stock (other than (A) to 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 Hovnanian) and (2) the Issuerissue or sale after February 1, 1999 of any Indebtedness or other securities of Hovnanian convertible into or exercisable for Qualified Stock of Hovnanian that have been so converted or exercised, as the case may be, 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 that was treated as constituting a Restricted Payment made after the Issue DateMay 4, 1999, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) 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 Consolidated Net Income referred to in (A)), plus (D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after May 4, 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 the Issue Date, and net only to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), an amount equal to the lesser of (x) the proportionate interest of 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 designation as an Unrestricted Subsidiary, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary$17 million, the lesser of minus (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (iiF) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (iii) of paragraph (b) below) made after February 1, 1999 through May 4, 1999. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture the Indenture; (2ii) the repurchase, redemption or retirement of any Equity Interests shares of the Issuer or any Restricted Subsidiary Capital Stock of Hovnanian in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of Hovnanian) of, other shares of Qualified Equity Interests;Stock; and (3iii) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Hovnanian or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of Hovnanian 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 ) not to exceed $10 million in the aggregate cash consideration paid since May 4, 1999; provided, however that each Restricted Payment described in clauses (i) and (ii) of this sentence shall be taken into account for purposes of computing the aggregate amount of all such redemptions shall not exceed Restricted Payments pursuant to clause (Aiii) $5.0 million during any calendar year of the immediately preceding paragraph. (with unused c) For purposes of determining the aggregate and permitted amounts being available to be used in the following calendar yearof Restricted Payments made, but not in any succeeding calendar year) plus (B) 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 cash proceeds received of any amounts paid by Hovnanian or contributed 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 paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests “equity value” of the Issuer 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 officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon Equity is not then traded on the New York Stock Exchange, American Stock Exchange or The 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 Hovnanian.

Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment: (1i) a an Event of Default or event that, after the giving of notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing or shall occur as a consequence thereofcontinuing; (2ii) the Issuer cannot incur $1.00 Consolidated Fixed Charge Ratio of additional Indebtedness pursuant the Company would be less than 1.75 to the Coverage Ratio Exception1.0; or (3iii) the aggregate amount expended by the Company and its Subsidiaries for all Restricted Payments (the amount of such Restricted Payment, when added to the aggregate amount any single or related series of all other Restricted Payments made so expended or distributed, if in excess of $15 million and other than in cash, to be determined in good faith by the Board of Directors, as evidenced by a Board resolution) after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds date hereof shall exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of Consolidated the Net Income of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period) commencing beginning on the first day of the fiscal quarter in which the Issue Date occurs to April 1, 2003 and including ending on the last day of the fiscal quarter ended for which financial information is available immediately prior to the date of such calculation for which consolidated financial statements are available (or, calculation; provided that if such Consolidated Net Income shall be a deficitfor such period is less than zero, then minus 100% of such aggregate deficit), net loss; plus (B) 100% of the aggregate net proceeds (including the fair market value of proceeds other than cash, as determined in good faith by the Board of Directors, as evidenced by a Board resolution if the fair market value of such non-cash proceeds is in excess of $15 million) received by the Issuer either (x) as contributions to the common equity of the Issuer Company from and after the Issue Date or (y) date hereof from the issuance and sale of Qualified Equity Interests after the Issue Date, (other than to a Subsidiary) of its Capital Stock (Aexcluding Redeemable Stock, but including Capital Stock other than Redeemable Stock issued upon conversion of, or in exchange for, Redeemable Stock or securities other than its Capital Stock), and warrants, options and rights to purchase its Capital Stock (other than Redeemable Stock), but excluding the net proceeds from the issuance, sale, exchange, conversion or other disposition of its Capital Stock convertible (unless solely at the option of the Company) into (x) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) of the Notes security other than its Capital Stock or (By) any such proceeds or assets received from a Subsidiary of the Issuer, plusits Redeemable Stock; less (C) the aggregate amount by which Indebtedness incurred expended by the Issuer Company and its Subsidiaries after the date hereof to optionally repay, repurchase or otherwise retire for value any Debt of the Company other than First-Priority Secured Debt, Second-Priority Secured Debt or any Restricted Subsidiary subsequent revolving credit facility (it being understood that the repurchase of senior and senior subordinated notes pursuant to the Issue Date Tender Offer as required by Section 4.15 is reduced on not optional); provided that the Issuer’s balance sheet upon the conversion or exchange foregoing clause (other than by a Subsidiary of the Issueriii) 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibit: (1) prevent 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 the payment would have complied with without violation of the provisions of this Indenture ;covenant. (2b) For purposes of clause (a)(iii)(B) above, the redemption aggregate net proceeds received by the Company (i) from the issuance of any Equity Interests of its Capital Stock upon the Issuer conversion of, or any Restricted Subsidiary in exchange for, or out securities evidencing Debt of the Company, shall be calculated on the assumption that the gross proceeds from such issuance are equal to the aggregate principal amount (or, if discount Debt, the accreted principal amount) of the Debt evidenced by such securities converted or exchanged and (ii) upon the conversion or exchange of other securities of the Company shall be equal to the aggregate net proceeds of the substantially concurrent issuance and original sale of, Qualified Equity Interests; (3) other than pursuant to of the securities so converted or exchanged if such proceeds of such original sale were not previously included in any calculation for the purposes of clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 (Aa)(iii)(B) $5.0 million during above plus 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 additional sums payable to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors Company upon conversion 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketexchange.

Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any Restricted Payment after the date of this Indenture if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2i) the Issuer cannot incur $1.00 amount of additional Indebtedness pursuant to the Coverage Ratio Exception; or such proposed Restricted Payment (3) the amount of such Restricted Payment, if other than in cash, shall 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 other Restricted Payments (excluding Restricted Payments permitted by Section 4.07(b)(ii), Section 4.07(b)(iii), Section 4.07(b)(iv), Section 4.07(b)(vi) and Section 4.07(b)(vii)) declared or made after the Issue Date (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 (without duplication):of: (A) $200.0 million, plus (B) 50% of the Company’s Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in which the Issue Covenant Trigger Date occurs to and including ending on the last day of the fiscal quarter ended immediately prior preceding the fiscal quarter in which the Restricted Payment is to the date of such calculation for which consolidated financial statements are available occur (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% of such aggregate deficit), plus (BC) the net cash proceeds derived from the issuance and sale of Capital Stock of the Company and its Restricted Subsidiaries (or any capital contribution to the Company or a Restricted Subsidiary) that is not Disqualified Stock (other than a sale to, or a contribution by, a Subsidiary of the Company) after the Issue Date, plus (D) 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 the Issue Date that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, plus (E) 100% of the aggregate net cash proceeds amounts received by the Issuer either 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) as contributions to the common equity of the Issuer after the Issue Date or not included in clause (B) above and (y) from that the issuance and sale making of Qualified Equity Interests such Investment constituted a Permitted Investment or Restricted Investment, plus (F) 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 the Issue Date, other than (A) any but only to the extent that 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 guarantee constituted a Subsidiary of the Issuerpermitted Restricted Payment, plus (CG) the aggregate amount by which Indebtedness incurred by the Issuer or with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary subsequent to in accordance with the Issue Date is reduced on definition of “Unrestricted Subsidiary” (so long as the Issuer’s balance sheet upon the conversion or exchange (other than by a designation of such 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 as an Unrestricted Subsidiary upon such conversion or exchange), plus (D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (and only to the extent not included in the computation of Consolidated Net Incomeclause (B) above), an amount equal to the lesser of (ix) 100% the proportionate interest of the aggregate amount received by the Issuer Company or any a Restricted Subsidiary in cash or other property 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 amount of the Restricted Payment deemed to be made upon such Subsidiary’s designation as the return of capital with respect to such Investment and an Unrestricted Subsidiary; or (ii) the amount Company would be unable to incur $1.00 of such Investment that was treated additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in Section 4.10 hereof; or (iii) a Default or Event of Default has occurred and is continuing or occurs as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reducedconsequence thereof. (b) The foregoing Notwithstanding the foregoing, the provisions of this Section 4.07 shall not prohibitprevent: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, thereof if on the date of declaration the payment thereof would have complied with the provisions limitations of this Indenture on the date of declaration; (2ii) the redemption purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement of any Equity Interests shares of the Issuer Company’s Capital Stock or any the Company’s or a Restricted Subsidiary in exchange Subsidiary’s Indebtedness for, or out of the net proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, Qualified Equity Interestsother shares of its Capital Stock (other than Disqualified Stock), provided that the proceeds of any such sale shall be excluded in any computation made under Section 4.07(a)(i)(C) above; (3iii) the purchase, repayment, redemption, repurchase, defeasance or other than acquisition or retirement for value of Indebtedness, including premium, if any, with the proceeds of Refinancing Indebtedness; (iv) payments or distributions pursuant to clause or in connection with a merger, consolidation or transfer of assets that complies with Section 4.13 hereof; (8) belowv) any purchase, the redemption redemption, retirement or other acquisition for value of Equity Interests Capital Stock of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 (A) $500,000 in any calendar year and $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 aggregate since 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)Date; (4vi) repurchases of Equity Interests that occur or are Capital Stock deemed to occur upon the exercise of stock options options, warrants or similar instruments if the Equity Interests such Capital Stock represents a portion of the exercise price thereofof such options, warrants or similar instruments; (5vii) Restricted Payments pursuant to the Transactionspayment by the Company of cash in lieu of the issuance of fractional shares upon the exercise of options, warrants or similar instruments or upon the conversion or exchange of Capital Stock of the Company; (6viii) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 payment of dividends on Preferred Stock and Disqualified Stock up to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed of $10.0 million in any twelve-month periodfiscal year; provided that no proceeds immediately after giving effect to any declaration of such dividend, the Company could incur at least $1.00 of Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained under Section 4.10 hereof; (ix) payments not to exceed $40.0 million in the aggregate for the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of the Company’s junior subordinated notes due July 30, 2036 (or the related trust preferred securities issued by Beazer Homes Capital Trust I), as such securities may be amended or modified from the issuance and sale of Qualified Equity Interests used time to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.time; or

Limitations on Restricted Payments. (a) The Issuer Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2) immediately after giving effect to such Restricted Payment, the Issuer cannot Parent could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; orand (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after (X) if such Restricted Payment is to be made on or prior to the Issue Conversion Date, the Closing Date (other than Restricted Payments made pursuant to clauses Section 7.4(b) (2), (3), (4), (5), (6), or (7) or (8) of Section 4.11(b)), exceeds or (Y) if such Restricted Payment Date is to be made after the Conversion Date, November 8, 2012 (other than Restricted Payments made pursuant to Section 7.4(b) (2), (3), (4), (5), (6), or (7)), in either case does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing from (X) if such Restricted Payment is to be made on or prior to the first day of Conversion Date, July 1, 2014 or (Y) if such Restricted Payment Date is to be made after the fiscal quarter Conversion Date, October 1, 2012, in which the Issue Date occurs each case to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors of the Parent) of any assets to be used in a Permitted Business received by the Issuer Parent (X) if such Restricted Payment is to be made on or prior to the Conversion Date, after the Closing Date, or (Y) if such Restricted Payment Date is to be made after the Conversion Date, after November 8, 2012, in either case either (x) as contributions to the common equity of the Issuer after the Issue Date Parent or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) 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 IssuerInterests, plus (C) the aggregate amount by which Indebtedness incurred by of the Issuer Parent or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerParent’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerParent) of Indebtedness issued subsequent to (X) if such Restricted Payment is to be made on or prior to the Conversion Date, the Closing Date, or (Y) if such Restricted Payment Date is to be made after the Conversion Date, November 8, 2012, in either case, into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer 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 that was treated as a Restricted Payment made (X) if such proposed Restricted Payment is to be made on or prior to the Conversion Date, after the Issue Closing Date, or (Y) if such proposed Restricted Payment Date is to be made after the Conversion Date, after November 8, 2012, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 IssuerParent’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerParent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 7.4(a)(E) and were not previously repaid or otherwise reduced, plus (F) 100% of the principal amount of, or, if issued at a discount, the accreted value of, any guarantee by the Parent or any Restricted Subsidiary incurred (X) if such proposed Restricted Payment is to be made on or prior to the Conversion Date, after the Closing Date, or (Y) if such proposed Restricted Payment Date is to be made after the Conversion Date, after November 8, 2012, in either case, that is subsequently released (other than due to a payment on such guarantee), but only to the extent that such guarantee was treated as a Restricted Payment pursuant to this paragraph (a) when made. (b) The foregoing provisions of Section 7.4(a) shall not prohibit: (1) the payment by the Issuer 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 Agreement; (2) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsInterests (other than to the Parent or any of its Subsidiaries); (3) the repurchase, redemption, defeasance or other than pursuant 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 clause be incurred under Section 7.3 and the other terms of this Agreement; (8) below4) the repurchase, the redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Issuer 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 serviceservice or any other repurchase event set forth in a written agreement between the Parent and such individual evidencing such Equity Interest as of the Closing Date; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million 4,000,000 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); (45) repurchases of Equity Interests that occur or are 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; (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 repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to 1.0;satisfy tax withholding or similar tax obligations with respect thereto; or (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that aggregate amount, when taken together with all Restricted Payments made pursuant to this clause (7Section 7.4(b)(7) shall and then outstanding, does not exceed (A) for the period ending on the Conversion Date, $25.0 million in 5,000,000, and (B) for the aggregate in any twelve-month period; or (8) period beginning after the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed Conversion Date, $10.0 million in any twelve-month period; 20,000,000. provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Section 7.4(b)(2) or (3)(B3) above shall increase the 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 cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Parent or a Restricted Subsidiary of the Parent, as the case may be, pursuant to the Restricted Payment.

Limitations on Restricted Payments. (a) The Issuer shall 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 shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added 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 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 clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (Aa) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including April 1, 1998 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event 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 Issuer either Company from (x1) as contributions any capital contribution to the common equity Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Issuer Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Issue Date Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (yc) from $86.0 million, which is equal to the issuance and sale aggregate principal amount of Qualified the Company’s 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company’s Common Equity Interests after prior to the Issue Date, other than plus (A) 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 (Dd) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateJune 9, 1997, an amount (to the extent not included in the computation calculation of the Consolidated Net IncomeIncome referred to in (a)) equal to the lesser of (ix) 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 (iiy) 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 (to the extent not included in the calculation of taxesthe Consolidated Net Income referred to in (a)), plus plus (Ee) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation 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 SubsidiaryPayment 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 (ix) 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) 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 the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit: : (1A) 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 the payment would have complied with without violation of the provisions of this Indenture ; Indenture; (2B) the repurchase, redemption or retirement of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company 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 Equity Interests; Stock; and (3C) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 ) not to exceed $20 million in the aggregate cash consideration paid for all such redemptions shall not exceed since the Issue Date; provided, however, that each Restricted Payment described in clauses (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 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 cash proceeds received of any amounts paid by the Company or contributed 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 Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests “equity value” of the Issuer 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 officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other secu- rities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon 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) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer canis not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) 5) of clause (b) of this Section 4.11(b)4.11), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs occurred to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 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 case of clauses (i) and (ii), received by the Issuer either (x) as contributions to the common equity of the Issuer after since the Issue Date as a contribution to its common equity capital or (y) from the issuance and issue or sale of Qualified Equity Interests after of the Issue Date, Issuer or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Issuer that have been converted into or exchanged for such Qualified Equity Interests (other than (A) any such proceeds which are used Equity Interests or debt securities sold 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), 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 incurred by (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary after the Issue Date of the Issuer) any such Indebtedness into or for Qualified Equity Interests of the Issuer and (less B) the amount of any cashaggregate net cash proceeds, or the fair value of assetsif any, distributed received by the Issuer or any of its Restricted Subsidiary Subsidiaries upon such any conversion or exchange)exchange described in clause (A) above, plus (D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing Notwithstanding the foregoing, the provisions shall set forth in clause (a) of this Section 4.11 will not prohibit: (1) the payment by of (a) any dividend or redemption payment or the Issuer or any Restricted Subsidiary making of any dividend distribution within 60 days after the date of declaration thereofthereof if, if on the date of declaration declaration, the payment dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture or (b) any dividend or similar distribution by a Restricted Subsidiary of the Issuer to the holders of its Equity Interests on a pro rata basis; (2) the redemption or acquisition of any Equity Interests of the Issuer or any Restricted Subsidiary 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 or other than acquisition or retirement for value 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, 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 4.10 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 clause the relevant offer prior to redeeming such Subordinated Indebtedness; (8) below4) the redemption, the redemption repurchase or other acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (x) upon their any such individual’s death, disability, retirement, severance or termination of employment or serviceservice or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided provided, in any case, that the aggregate cash consideration paid for all such redemptions redemptions, repurchases or other acquisitions or retirements 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 calendar year being carried forward to the next 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 (34), 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 (34); (4a) repurchases repurchases, redemptions or other acquisitions or retirements for value of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the options, warrants, rights to acquire Equity Interests represents or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof; thereof and (5b) Restricted Payments pursuant to the Transactionsany 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) Restricted Payments if after giving effect thereto dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0extent such dividends are included in the definition of Consolidated Interest Expense; (7) other Restricted Payments the payment of cash in an amount not lieu of fractional Equity Interests; (8) payments or distributions to exceed $50.0 million; provided that Restricted Payments made dissenting stockholders pursuant to this clause (7) shall not exceed $25.0 million applicable law in connection with a merger, consolidation or transfer of assets that complies with the aggregate in any twelve-month periodprovisions of Article 5; or (8) the purchase or retirement 9) payment of Class B Common Stock of the Issuer other Restricted Payments from any Permitted Holder time to time in an aggregate amount not to exceed $10.0 15.0 million in any twelve-month periodfiscal year; provided that (a) in the case of any Restricted Payment pursuant to clauses (3), (4) or (9) above, no proceeds from the 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 clause clauses (2), (3) or (3)(B4)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2a) the Issuer canis not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Coverage Ratio ExceptionException or (b) the Consolidated Leverage Ratio exceeds 3.00 to 1.00; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) 5) of clause (b) of this Section 4.11(b)4.11), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 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 case of clauses (i) and (ii), received by the Issuer either (x) as contributions to the common equity of the Issuer after since the Issue Date as a contribution to its common equity capital or (y) from the issuance and issue or sale of Qualified Equity Interests after of the Issue Date, Issuer or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Issuer that have been converted into or exchanged for such Qualified Equity Interests (other than (A) any such proceeds which are used Equity Interests or debt securities sold 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), 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 incurred by (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary after the Issue Date of the Issuer) any such Indebtedness into or for Qualified Equity Interests of the Issuer and (less B) the amount of any cashaggregate net cash proceeds, or the fair value of assetsif any, distributed received by the Issuer or any of its Restricted Subsidiary Subsidiaries upon such any conversion or exchange)exchange described in clause (A) above, plus (D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing Notwithstanding the foregoing, the provisions shall set forth in clause (a) of this Section 4.11 will not prohibit: (1) the payment by of (a) any dividend or redemption payment or the Issuer or any Restricted Subsidiary making of any dividend distribution within 60 days after the date of declaration thereofthereof if, if on the date of declaration declaration, the payment dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture or (b) any dividend or similar distribution by a Restricted Subsidiary of the Issuer to the holders of its Equity Interests on a pro rata basis; (2) the redemption or acquisition of any Equity Interests of the Issuer or any Restricted Subsidiary 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 or other than acquisition or retirement for value 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, 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 4.10 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 clause the relevant offer prior to redeeming such Subordinated Indebtedness; (8) below4) the redemption, the redemption repurchase or other acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (x) upon their any such individual’s death, disability, retirement, severance or termination of employment or serviceservice or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided provided, in any case, that the aggregate cash consideration paid for all such redemptions redemptions, repurchases or other acquisitions or retirements 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 calendar year being carried forward to the next 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 (34), 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 (34); (4a) repurchases repurchases, redemptions or other acquisitions or retirements for value of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the options, warrants, rights to acquire Equity Interests represents or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof; thereof and (5b) Restricted Payments pursuant to the Transactionsany 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) Restricted Payments if after giving effect thereto dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0extent such dividends are included in the definition of Consolidated Interest Expense; (7) other Restricted Payments the payment of cash in an amount not lieu of fractional Equity Interests; payments or distributions to exceed $50.0 million; provided that Restricted Payments made dissenting stockholders pursuant to this clause (7) shall not exceed $25.0 million applicable law in connection with a merger, consolidation or transfer of assets that complies with the aggregate in any twelve-month periodprovisions of Article 5; or (8) the purchase or retirement payment of Class B Common Stock of the Issuer other Restricted Payments from any Permitted Holder time to time in an aggregate amount not to exceed (a) $10.0 million in any twelve-month periodfiscal year or (b) $25.0 million in aggregate amount since the Issue Date; provided that (a) in the case of any Restricted Payment pursuant to clauses (3), (4) or (9) above, no proceeds from the 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 clause clauses (2), (3) or (3)(B4)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2) immediately after giving effect to such Restricted Payment, the Issuer cannot Parent could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; orand (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date November 8, 2012 (other than Restricted Payments made pursuant to clauses Section 4.04(b) (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) or (8) of Section 4.11(b12)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from October 1, 2012 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors) of any assets to be used in a Permitted Business received by the Issuer Parent either (x) as contributions to the common equity of the Issuer Parent after the Issue Date November 8, 2012 or (y) from the issuance and sale of Qualified Equity Interests after November 8, 2012, to the Issue Date, other than (A) any extent the cash proceeds from the sale of such proceeds which are used Qualified Equity Interests have not otherwise been applied to redeem Notes in accordance with paragraph 5(c) the payment of the Notes or (B) any such proceeds or assets received from a Subsidiary Restricted Payments by virtue of the IssuerSection 4.04(b)(4)(A), plus (C) the aggregate amount by which Indebtedness incurred by of the Issuer Parent or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerParent’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerParent) of Indebtedness issued subsequent to November 8, 2012 into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer 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 that was treated as a Restricted Payment made after the Issue DateNovember 8, 2012, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 IssuerParent’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerParent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 4.04(a)(3)(E) and were not previously repaid or otherwise reduced, plus (F) 100% of the 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 a payment on such guarantee), but only to the extent that such guarantee was treated as a Restricted Payment pursuant to this paragraph (a) when made. (b) The foregoing provisions of Section 4.04(a) shall not prohibit: (1) the payment by the Issuer 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 Indenture; (2) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsInterests (other than to the Parent or any of its Subsidiaries); (3) the repurchase, redemption, defeasance or other than pursuant 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 clause be incurred under Section 4.03 and the other terms of this Indenture; (8) below4) the repurchase, the redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Issuer Parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates)) of the Parent or any Restricted Subsidiary, upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or serviceservice or any other repurchase event set forth in a written agreement between the 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 (A) $5.0 million 4,000,000 during any calendar year (with any unused amounts being available to be used in the following calendar year, but not portion of such $4,000,000 in any calendar year being carried over to succeeding calendar year) plus years); provided, further that such amount in any calendar year may be increased by an amount not to exceed: (BA) 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 to any future, present or former officer, director or employee or former officer, director or employee (or their transferees, estates or beneficiaries under their estates) of the Issuer Parent or any Restricted Subsidiary that occurred after the Issue Date, to its officers, directors or employees that the extent the cash proceeds from the sale of such Qualified Equity Interests have not otherwise been applied to the payment of Restricted Payments pursuant to this clause by virtue of Section 4.04(a)(3)(B); plus (3), plus B) the cash proceeds of key man life insurance policies received by the Parent or its Restricted Subsidiaries after the Issue Date; less (C) the net cash proceeds amount of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments made in previous calendar years pursuant to this clause Sections 4.04(b)(4)(A) and (3B); (45) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent 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 repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to 1.0satisfy tax withholding or similar tax obligations with respect thereto; (7) other Restricted Payments in an aggregate amount not to exceed $50.0 million; provided that that, when taken together with all Restricted Payments made pursuant to this clause (7Section 4.04(b)(7) shall and then outstanding, does not exceed $25.0 million 20,000,000; (8) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Equity Interests of the Parent or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Equity Interests of the Parent or such Restricted Subsidiary, as the case may be, so long as such refinancing Disqualified Equity Interests constitute Refinancing Indebtedness in respect of the Disqualified Equity Interests so refinanced; (9) any 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 principal amount of such Subordinated Indebtedness in the aggregate event of a Change of Control in accordance with provisions similar to the terms described under Section 4.10 herein or (b) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to the terms described under Section 4.06 herein; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has made the Change of Control Offer or Asset Sale Offer as provided in Section 4.06 or 4.10, as applicable, with respect to the Securities and has completed the repurchase or redemption of all Securities validly tendered for payment in connection with such Change of Control Offer or Asset Sale Offer; (10) (a) any twelvepayments in connection with a Permitted Bond Hedge Transaction and (b) the settlement of any related Permitted Warrant Transaction (i) by delivery of shares of the Parent’s common stock upon settlement thereof or (ii) by (A) set-month periodoff against the related Permitted Bond Hedge Transaction or (B) payment of an early termination amount thereof in common stock upon any early termination thereof; (11) cash payments in lieu of the issuance of fractional shares of the Parent’s Equity Interests upon the exercise, conversion or exchange of stock options, warrants or other rights to purchase Equity Interests or other convertible or exchangeable securities; provided, however, that any such payment shall not be for the purpose of evading any limitation of this Section 4.04 (as determined in good faith by the Board of Directors); or (8) the purchase 12) payments or retirement distributions to holders of Class B Common Stock Equity Interests of the Issuer from Parent or any Permitted Holder of the Restricted Subsidiaries pursuant to appraisal or dissenter rights required under applicable law or pursuant to a court order in an aggregate amount not to exceed $10.0 million in connection with any twelve-month period; merger, amalgamation, arrangement, consolidation or sale, assignment, conveyance, transfer, lease or other disposition of assets, provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Section 4.04(b)(2) or (3)(B3) above shall increase the 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 cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Parent or a Restricted Subsidiary of the Parent, as the case may be, pursuant to the Restricted Payment.

Limitations on Restricted Payments. (a) The Company and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could incur at least $1.00 of Indebtedness pursuant to Section 4.06(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 on or after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including May 1, 2008 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity of the Issuer Company after the Issue Date or any issue or sale after the Issue Date of Qualified Stock (other than (x) to any Subsidiary of the Company or (y) from any Excluded Contribution) and (2) the issuance and issue or sale of Qualified Equity Interests after the Issue Date, Date of any Indebtedness or other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) securities of the Notes Company convertible into or (B) any such proceeds or assets received from a Subsidiary exercisable for Qualified Stock of the IssuerCompany that have been so converted or exercised, as the case may be, 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 that was treated as constituting a Restricted Payment (or if the Investment was made prior to the Issue Date, that would have constituted a Restricted Payment if made after the Issue Date, if such disposition or repayment results in cash received by the Company, the Issuer or any Restricted Subsidiary), an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) the amount of such Investment that was treated (or would have been treated when made) as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net (to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), plus (ED) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation Restricted Subsidiary after 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 SubsidiaryPayment made after the Issue Date, and only to the extent not included in the calculation of Consolidated Net Income referred to in (A)), an amount equal to the lesser of (ix) 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the aggregate amount Designation Amount at the time of the Issuersuch Subsidiary’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduceddesignation as an Unrestricted Subsidiary. (b) The foregoing provisions shall clauses (ii) and (iii) of paragraph (a) will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture the Indenture; (2ii) the redemption purchase, repayment, repurchase, redemption, defeasance or other acquisition or retirement of any Equity Interests Subordinated Indebtedness of the Issuer Issuer, the Company or any Restricted Subsidiary or 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 or constituting an Excluded Contribution) of, other shares of Qualified Stock; (A) the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer, the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsRefinancing Indebtedness; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value 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 Subordinated Indebtedness of the Issuer to its officersIssuer, directors the Company or employees that have not been applied to any Restricted Subsidiary or the payment making 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);Investments in joint ventures: (41) 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 50.0 million (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (B)(1) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (B)(1)); or (2) in an aggregate amount made under this clause (B)(2) not to exceed Excluded Contributions (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (B)(2) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (B)(2)); and (C) following receipt of a Qualified Collateral Appraisal (as defined below), the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer, the Company or any Restricted Subsidiary or the making of Restricted Investments in joint ventures (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (C) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (C)), in an aggregate amount not to exceed $400.0 million less the aggregate amount of Restricted Payments previously made under clause (iii)(B)(1) above; provided that, on a pro forma basis after giving effect to any such Restricted Payment, the aggregate fair market value of the Collateral (as determined in good faith by the Company’s chief financial officer) is equal to at least 200% of the aggregate principal amount of Collateralized Debt as of such date (or, in the case of a Restricted Investment in a joint venture, on the date the Company determines to make such Investment, so long as the Investment is completed within 120 days of such determination date), such fair market value to be determined by the most recent appraisal of the Collateral required to be provided under the Revolving Credit Agreement; (iv) the payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10 million in any twelve-month periodfiscal year; provided that no proceeds from immediately after giving effect to any declaration of such dividend, the issuance and sale Company could incur at least $1.00 of Qualified Equity Interests used to make a payment Indebtedness pursuant to clause Section 4.06(a); and (2v) 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 (3)(Bor their estates or beneficiaries under their estates) above shall increase not to exceed $10 million in the Restricted Payments Basket.aggregate since the Issue Date;

Limitations on Restricted Payments. (a) The Issuer Company and the Guarantors shall not, and neither the Company nor the Guarantors shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment: Payment on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing or shall occur as a consequence thereof; continuing, (2) the Issuer canCompany is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Debt Incurrence Ratio Exception; or test in Section 4.7 hereof, or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment, on and after the Issue Date Date, would exceed, without duplication, the sum of (other than Restricted Payments made pursuant to clauses (2)a) $20,000,000, plus, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (Ab) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on the first day of the fiscal quarter in which the Issue Date occurs April 1, 2001, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation for which consolidated financial statements of the Company are available (or, if such in the event Consolidated Net Income shall be for such period is a deficit, then minus 100% of such aggregate deficit), plus plus (Bc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Issuer either Company from the sale of its Qualified Capital Stock or of its debt securities that have been converted into Qualified Capital Stock (other than (i) to one of its Subsidiaries and (ii) to the extent applied in connection with clauses (x) as contributions to the common equity of the Issuer after the Issue Date or and (y) from in the issuance and sale of Qualified Equity Interests next succeeding paragraph), after the Issue Date, other than plus (Ad) 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 extent that any Restricted Subsidiary subsequent to Investment that was made after 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in sold for cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiaryotherwise liquidated or repaid for cash, the lesser of (i) the Fair Market Value cash return of capital with respect to such Restricted Investment (less the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignationcost of disposition, if any) and (ii) the aggregate initial amount of such Restricted Investment, plus (e) 50% of any dividends received by the Issuer’s Investments in such Company or a Guarantor after the Issue Date from an Unrestricted Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) included in Consolidated Net Income. The foregoing provisions shall clauses of the immediately preceding paragraph of this Section 4.9, however, will not prohibit: : (1x) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of the Company's Qualified Capital Stock; (y) the defeasance, redemption or repurchase of Subordinated Indebtedness with the Net Cash Proceeds from an incurrence of Refinancing Indebtedness or the substantially concurrent sale (other than to a Subsidiary of the Company) (or in exchange for) of Qualified Capital Stock; or (z) 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 such declaration the payment would have complied in compliance with the provisions of this Indenture ; (2) the redemption foregoing provisions. The full amount of any Equity Interests Restricted Payment made pursuant to the foregoing clause (z) (but not pursuant to clauses (x) and (y)) of the Issuer or any immediately preceding sentence, however, will be counted as Restricted Subsidiary in exchange for, or out Payments made for purposes of the proceeds calculation of the substantially concurrent issuance and sale of, Qualified Equity Interests; aggregate amount of Restricted Payments available to be made referred to in clause (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officersfirst paragraph of this Section 4.9. For purposes of this Section 4.9, directors or employees or former officers, directors or employees (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 Restricted Payment made or contributed to returned, if other than in cash, shall be the Issuer from fair market value thereof, as determined in the issuance and sale after the Issue Date of Qualified Equity Interests good faith reasonable judgment of the Issuer to its officersCompany's Board of Directors, directors unless stated otherwise, at the time made or employees that have not been applied to returned, as applicable. Additionally, on the payment day of making any Restricted Payments pursuant to this clause (3)Payment, 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 other than 3.0 to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketset forth in clauses (x)-(z) above, the Company shall deliver an Officers' Certificate to the Trustee describing in reasonable detail the nature of such Restricted Payment, stating the amount of such Restricted Payment, stating in reasonable detail the provisions of the Indenture pursuant to which such Restricted Payment was made and certifying that such Restricted Payment was made in compliance with the terms of this Indenture.

Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not permit any of its Significant Subsidiaries to, directly or indirectly, take any of the following actions (each a "Restricted Payment"): (i) declare or pay any dividends or make any distributions in respect of shares of Capital Stock, of the Company other than dividends or distributions payable exclusively in Capital Stock to holders of such Capital Stock (provided that this clause (i) will not apply to dividends made to the Company by any consolidated Subsidiary so long as dividends are paid on a pro rata basis based on ownership of Capital Stock); or (ii) purchase, redeem or otherwise acquire any Capital Stock of the Company or, unless done on a pro rata basis, any Capital Stock of any Subsidiary of the Company; provided, however, beginning the earlier of March 16, 2010 if the installments of principal required to be paid on January 1, 2010, in connection with the Notes (as applicable) have been paid in full or upon prepayment of at least twenty percent (20%) of the original principal amount of the Long-Term Notes, the Company can repurchase, redeem or otherwise acquire its Capital Stock, or any Capital Stock of its Subsidiaries, as the case may be, upon the exercise of stock options if (x) such Capital Stock represents a portion of the exercise price under the terms of agreements, including employment agreements, or plans approved by the board of directors of the Company and (y) such repurchases, redemptions or other acquisitions do not in the aggregate exceed two million five hundred thousand U.S. Dollars (US$2,500,000) (or the Dollar Equivalent in any other currency) for the period from and including January 2, 2010 through the end of the fiscal year ended December 31, 2012 and five million U.S. Dollars (US$5,000,000) (or the Dollar Equivalent in any other currency) in any fiscal year thereafter. (b) Notwithstanding the foregoing subsection (a) of this Section 3.5, the Company may, and may permit any of its Subsidiaries to, directly or indirectly, make any a Restricted Payment if at in the time of such Restricted Paymentevent that: (1i) a no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereofimmediately prior to and after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 aggregate principal amount of additional outstanding Senior Indebtedness pursuant is equal to or less than fifty percent (50%) of the Coverage Ratio Exceptionaggregate principal amount of the Senior Indebtedness originally issued; orand (3iii) the amount for each one U.S. Dollar (US$1) paid on account of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date Company shall repay two U.S. Dollars (other than Restricted Payments made pursuant to clauses (US$2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) 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 principal of the IssuerLong-Term Debt, 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) as defined in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reducedNote Purchase Agreement). (b) The foregoing provisions shall not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. Until the Notes are rated Investment Grade by both Rating Agencies, after which time the following covenant no longer shall be binding on the Company or any Restricted Subsidiary: (a) The Issuer shall not, and shall not permit neither the Company nor any of its Restricted Subsidiary toSubsidiaries shall, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment, if, after giving effect thereto on a pro forma basis: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2i) the Issuer canCompany could not incur Incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exceptionprovisions described in paragraph (b) of Section 5.02 hereof; (ii) a Default or an Event of Default would occur or be continuing; or (3iii) the aggregate amount of all Restricted Payments, including such proposed Restricted Payment, made by the Company and its Restricted Subsidiaries, from and after the Issue Date and on or prior to the date of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds shall exceed the sum (the “Restricted Payments "Basket”") of (without duplication):of (A) 50% of Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on with the first day of the full fiscal quarter in which includes the Issue Date occurs Date, to and including the last day of the fiscal quarter ended immediately prior to the date of such each calculation for which consolidated internal financial statements are available (or, if such Consolidated Net Income shall be a deficitfor such period is negative, then minus 100% of such aggregate deficit), ; plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity amount of any Indebtedness of the Issuer Company or a Restricted Subsidiary Incurred after the Issue Date that is converted into or (y) from exchanged for Qualified Capital Stock of the issuance and sale of Qualified Equity Interests Company after the Issue Date, other than (A) 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) to the aggregate amount by which Indebtedness incurred by the Issuer or extent that any Restricted Subsidiary subsequent Investment made after the date of this First Supplemental Indenture is sold for cash or otherwise reduced or liquidated or repaid for cash, in whole or in part, the lesser of (1) the cash return of capital with respect 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 such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of any cash, or the fair value of assets, distributed by the Issuer or any such Restricted Subsidiary upon such conversion or exchange), Investment; plus (D) in the case unless accounted for pursuant to clause (B) above, 100% of the disposition 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 repayment issuance issuance (other than to a Subsidiary of the Company) of its Qualified Capital Stock after the Issue Date and on or return on prior to the date of such Restricted Payment; plus (E) with respect to any Investment Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after 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 the Issue Date, an amount (Date and only to the extent not included in the computation calculation of Consolidated Net Income) ), an amount equal to the lesser of (ix) the book value in accordance with GAAP of the Company's or a Restricted Subsidiary's Investment in such Subsidiary, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary; plus (F) 100% of tax benefits, if any, for the aggregate amount received period (taken as one accounting period), commencing with the first full fiscal quarter which includes the Issue Date, realized by the Issuer or any Restricted Subsidiary in cash or other property (valued at Company from stock option exercises and from the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost issuance of the disposition of such Investment and net of taxes, 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 (EG) 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 Restricted Payments Basket and were not previously repaid or otherwise reduced$50,000,000. (b) The foregoing provisions shall clause (a) does not prohibit: (1i) 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 the payment would have complied in compliance with the provisions of this Indenture foregoing provisions; (2ii) the redemption payment of cash dividends or other distributions to any Equity Interests 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, as provided for in the documentation governing such joint venture), as the case may be; (iii) repurchases or redemptions of Capital Stock of the Issuer 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 any Restricted Subsidiary the retirement in Indebtedness of the Company, in exchange for, for or out of the proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, other shares of its Qualified Equity Interests; (3) other than pursuant to clause (8) below, Capital Stock and the redemption retirement of Equity Interests Capital Stock or Indebtedness of a Restricted Subsidiary in exchange for or out of the Issuer held by officersproceeds of a substantially concurrent sale of its Qualified Capital Stock, directors or employees or former officersprovided that, directors or employees (or their transfereesin each case, 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 such proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date is excluded for purposes 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 (Ca)(iii)(D) 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)above; (4v) repurchases by the Company of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion Capital Stock of the exercise price thereof; Company (5from Persons other than officers or directors of the Company) Restricted Payments pursuant in one or more open market and/or privately negotiated transactions of up to $85,000,000 in the Transactions; (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 aggregate at any time or from time to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 milliontime on or before March 31, 2002; provided that Restricted Payments any such repurchases not made pursuant to this clause (7v) shall on or before March 31, 2002 may not exceed $25.0 million in the aggregate in be made at any twelve-month periodsubsequent time; or (8) vi) repurchases by the purchase or retirement Company of Class B Common Capital Stock of the Issuer Company (from Persons other than executive officers or directors of the Company) in one or more open market and/or privately negotiated transactions of up to $100,000,000 in the aggregate at any Permitted Holder in an aggregate amount time or from time to time from March 15, 2002 until June 1, 2003; provided, that any such repurchases not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment made pursuant to this clause (2vi) on or before June 1, 2003 may not be made at any subsequent time. Any Restricted Payment made in accordance with clauses (3)(Bi) above and (iii) of this paragraph shall increase reduce the Basket. In calculating the Basket, any Restricted Payments BasketPayment not made in cash and any non-cash amounts received for purposes of clause (D) shall be valued at fair market value as determined in good faith by the Board of Directors, whose determination shall be conclusive and whose resolution with respect thereto shall be delivered to the Trustee promptly after the adoption thereof."

Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if if, at the time of such Restricted Payment:Payment or after giving effect thereto, (1a) a Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exceptioncontinuing; or (3b) either Savings Bank would fail to meet any of the Regulatory Capital Requirements; or (c) the amount Company would fail to maintain sufficient Liquid Assets to comply with the terms of such Restricted Payment, when added to the covenant set forth in Section 9.11 hereof; or (d) the aggregate amount of all other Restricted Payments (the amount of such 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) declared and made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds would exceed the sum (the “Restricted Payments Basket”) of (without duplication):of (Ai) 5025% of the aggregate Consolidated Net Income for (or, if such Consolidated Net Income is a deficit, 100% of such deficit) of the Company and its Subsidiaries accrued on a cumulative basis during the period (taken as one accounting period) commencing beginning on the first day of the fiscal quarter in during which the Issue Date occurs to occurred and including ending on the last day of the Company's last fiscal quarter ended immediately ending prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), proposed Restricted Payment; plus (Bii) the aggregate Net Cash Proceeds received by the Company as capital contributions (other than from a Subsidiary) after the Issue Date; 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 aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity amount of any Indebtedness of the Issuer Company or a Subsidiary that is issued after the Issue Date that is thereafter converted into or (y) from the issuance and sale of exchanged for Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) Capital Stock of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plusCompany; or (Ce) the aggregate amount by Unsecured Debt Coverage Ratio for the Company for the most recently ended four full fiscal quarters for which Indebtedness incurred by internal financial statements are available immediately preceding 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 date 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 that was treated as a Restricted Payment made is less than 2.00 to 1.00, determined after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 giving effect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment; provided, in either casehowever, less that the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall will not prohibit: prevent (1x) the payment by the Issuer or any Restricted Subsidiary of any a dividend within 60 days after the date of its declaration thereof, if on at the date of declaration such payment was permitted by the payment would have complied with foregoing provisions, or (y) any Permitted Payment, or (z) tax sharing payments by the provisions of this Indenture ; (2) the redemption of any Equity Interests of the Issuer Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 Subsidiaries pursuant to the Transactions; existing Tax Allocation Agreement (6) Restricted Payments if after giving effect thereto or any subsequently adopted tax allocation agreement the Issuer’s Net Leverage Ratio is terms of which are not greater than 3.0 to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million materially less favorable in the aggregate in any twelve-month period; or (8) to the purchase or retirement Company than the terms of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments BasketTax Allocation Agreement).

Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could Incur at least $1.00 of Coverage Indebtedness pursuant to Section 4.06(a); 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 on or after the Issue Date (other than those Restricted Payments made pursuant to clauses (2described in Section 4.07(b)(iii) through Section 4.07(b)(xiii), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on from and including the first day of the Company’s fiscal quarter in during which the Issue Date occurs to and including ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of any Property or other asset received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity of the Issuer Company after the Issue Date or (y) from any issue or sale after the issuance and sale Issue Date of any Qualified Equity Interests and (2) the issue or sale after the Issue Date, Date of any Indebtedness or other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) securities of the Notes Company convertible into or (B) any such proceeds exercisable for Qualified Equity Interests that have been so converted or assets received from a Subsidiary of the Issuerexercised, 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 a distribution on or disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue DateInvestment, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 Equity Interests) and (iiy) 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 (to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), plus (ED) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation Restricted Subsidiary after 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 SubsidiaryPayment made after the Issue Date, and only to the extent not included in the calculation of Consolidated Net Income referred to in (A)), an amount equal to the lesser of (ix) the proportionate interest of the Company or 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 the Issuer’s proportionate interest such Unrestricted Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the aggregate amount Designation Amount at the time of the Issuersuch Unrestricted Subsidiary’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduceddesignation as an Unrestricted Subsidiary. (b) The foregoing provisions shall Section 4.07(a) will not prohibit: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend or redemption of any Equity Interests or Subordinated Indebtedness within 60 days after the date of declaration thereofthereof or call for redemption if, if on at such date of declaration or call for redemption, such payment or redemption was permitted by the provisions of the preceding paragraph as of the date of declaration (and the payment would itself will be deemed to have complied with the provisions been paid on such date of this Indenture declaration); (2ii) any Restricted Payment made in exchange for, or out of the net proceeds of the substantially concurrent sale of, Qualified Equity Interests; (iii) the redemption purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value by the Company of any Equity Interests Subordinated Indebtedness of the Company, the Corporate Issuer or any Restricted Subsidiary in exchange for, or out of proceeds of, Refinancing Indebtedness Incurred as permitted by and in compliance with Section 4.06; (iv) Restricted Investments after the Issue Date not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $10,000,000; (v) Restricted Investments after the Issue Date in joint ventures not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $100,000,000; provided, however, that, at the time any such Investment is made, the net book value of the Company’s inventory (including “work-in-progress” inventory, land held for development and land held for sale) and cash securing the Notes and any other Pari-Passu Lien Obligations is at least 275% of the aggregate principal amount of the Notes then outstanding plus the aggregate amount of such other Pari-Passu Lien Obligations; (vi) Restricted Payments made after the Issue Date in respect of Specified Obligations not to exceed $70,000,000; provided, however, that such Restricted 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) the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Company, the Corporate Issuer or any Restricted Subsidiary with the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interestsoffering of the Notes as described in the Offering Circular; (3ix) other than pursuant the declaration and payment of dividends to clause (8) below, the redemption holders of any class or series of Disqualified Equity Interests of the Issuer held Company or any of its Restricted Subsidiaries issued in accordance with and to the extent permitted by officersSection 4.06; provided, directors or employees or former officershowever, directors or employees that, at the time of payment of such dividend, no Default shall have occurred and be continuing (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 (3result therefrom); (4x) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock equity options or warrants if the such Equity Interests represents represent a portion of the exercise price thereofof such options or warrants; (5xi) Restricted Payments pursuant to the Transactionsthat are made with Excluded Contributions; (6xii) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions similar to those described in Section 4.10 and Section 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 (xiii) Restricted Payments if Investments after giving effect thereto the Issuer’s Net Leverage Ratio is not greater Issue Date in joint ventures (other than 3.0 to 1.0; (7amounts expended in respect of Specified Obligations) other Restricted Payments 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 $50.0 million; provided that Restricted Payments 70,000,000 (any Investment made pursuant to this clause (7xiii) shall not exceed $25.0 million in being 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 twelve-month period; or (8) the purchase Person that was initially treated as a Restricted Payment and which was subsequently terminated or retirement expired, net of Class B Common Stock any amounts paid by either of the Issuer from Issuers or any Permitted Holder Restricted Subsidiary in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale respect of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above such guarantee, shall increase the Restricted Payments Basketbe deducted.

Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2), (3), (4), (5), (6), (7) ), (8) or (8) 9) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”"RESTRICTED PAYMENTS BASKET") of (without duplication): (Aa) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plusPLUS (Bb) 100% of the aggregate net cash proceeds received by the 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 Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(cSection 6(a) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plusPLUS (Cc) 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 '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), plusPLUS (Dd) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plusPLUS (Ee) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s 's proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s 's Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall will not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 Indenture; (2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, 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, 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 4.10 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 redeeming such Subordinated Indebtedness; (4) payments by the Issuer or to Parent to permit Parent or Holdings, and which are used by Parent or Holdings, to redeem Equity Interests of the Issuer Issuer, Parent or Holdings held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided PROVIDED that the aggregate cash consideration paid for all such redemptions shall not exceed the sum of (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 Holdings, Parent or the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (34), 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 (34); (5) payments to Parent permitted pursuant to clauses (3) and (4) of Section 4.14(b); (6) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents represent a portion of the exercise price thereof; (57) to the extent that the Net Available Proceeds (without duplication of any amount that increased the Restricted Payments pursuant Basket) of any Permitted Sale and Leaseback Transaction exceed the Permitted Sale and Leaseback Transaction Amount, payments of such excess amount to Parent to permit Parent or Holdings, and the subsequent use of such payments by Parent or Holdings, to pay a dividend to the Transactionsholders of Equity Interests of Parent or Holdings or a distribution to the holders of Indebtedness of Parent or Holdings; (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio 8) distributions to Parent in order to enable Parent or Holdings to pay customary and reasonable costs and expenses of an offering of securities of Parent or Holdings that is not greater than 3.0 to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month periodconsummated; or (8) 9) additional Restricted Payments of $20.0 million; PROVIDED that (a) in the purchase case of any Restricted Payment pursuant to clause (3)(c) or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that (7) above, no proceeds from the 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 clause (2), (3) or (3)(B4)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if unless at the time of and after giving effect to such Restricted Payment: (1) a no Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) immediately after giving effect to such transaction on a pro forma basis, the Issuer cannot could incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio ExceptionSection 4.03(a); orand (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses Section 4.04(b) (2), (3), (4), ) through (5), (6), ) and (7) or through (8) of Section 4.11(b13)), exceeds would not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from April 1, 2014 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds or the Fair Market Value of any assets to be used in a Permitted Business or Capital Stock of a Person engaged in a Permitted Business (provided, that, such Person becomes a Restricted Subsidiary of the Issuer or such Person is merged or consolidated into the Issuer or any of the Restricted Subsidiaries) received by the Issuer either (xi) as contributions to the common equity of the Issuer after the Issue Date or (yii) received by the Issuer from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such net cash 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 an issuance or sale of such Qualified Equity Interests to a Subsidiary of the IssuerIssuer or to an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Issuer or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination, plus (C) the aggregate amount by which Indebtedness incurred by of 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 in respect of Indebtedness held by a Subsidiary of the Issuer) of Indebtedness issued subsequent to the Issue Date into Qualified Equity Interests (less the amount of any cash, 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net IncomeSection 4.04(a)(3)(A)) equal to the lesser of (i) 100% net reduction 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 and (ii) the amount portion of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, to the extent not already included in the computation of Section 4.04(a)(3)(A), 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 Basket under this Section 4.04(a)(3) and were not previously repaid or otherwise reduced, plus (F) 100% of the 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 or discharged (other than due to a payment on such guarantee), but only to the extent that such guarantee was treated as a Restricted Payment pursuant to this Section 4.04(a)(3) when made. (b) The foregoing 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 or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof such dividend or distribution or the giving of the redemption notice, if on the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture Indenture; (2) the redemption any purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Equity Interests Subordinated Indebtedness of the Issuer or any Restricted Subsidiary in Guarantor made by exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsSubordinated Indebtedness that constitutes Refinancing Indebtedness; (3) the repurchase, redemption, defeasance or other than pursuant to clause (8) below, the redemption acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates)) of the Issuer or any Restricted Subsidiary, upon their deathpursuant to any equity subscription agreement, disabilitystock option agreement, retirement, severance shareholders’ agreement or termination similar agreement or benefit plan of employment or serviceany kind; provided that the aggregate cash consideration paid for all such redemptions payments shall not exceed (A) $5.0 2.5 million during any calendar year (with it being understood, however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in carried over to subsequent calendar years, so long as 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 consideration applied to the payment repurchase, redemption, defeasance or other acquisition or retirement for value of Restricted Payments Equity Interests pursuant to this clause (3), plus (CSection 4.04(b)(3) the net cash proceeds of shall in no event exceed $5.0 million in any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3calendar year); (4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent a portion of the exercise price thereof; (5) Restricted Payments pursuant the repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to the Transactionssatisfy tax withholding or similar tax obligations with respect thereto; (6) Restricted Payments if after giving effect thereto the payment of dividends on the Issuer’s Net Leverage Ratio is not greater Qualified Equity Interests (other than 3.0 preferred stock) (or the payment of any dividend to 1.0any 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 after the Issuer Date 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; (7) other Restricted Payments in an amount not to exceed $50.0 million; provided that aggregate amount, when taken together with all Restricted Payments made pursuant to this clause (7Section 4.04(b)(7) shall and then outstanding, does not exceed $25.0 million in the aggregate in any twelve-month period; or10.0 million; (8) the purchase any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Class B Common Stock Equity Interests, Disqualified Equity Interests or Subordinated Indebtedness of the Issuer or any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Issuer (other than Disqualified Equity Interests and other than Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Issuer or any Permitted Holder Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that the net cash proceeds from such sale of Equity Interests will be excluded from Section 4.04(a)(3)(B) above to the extent so applied; (9) 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, as the case may be, so long as such refinancing Disqualified Equity Interests constitute Refinancing Indebtedness; (10) any 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 principal amount of such Subordinated Indebtedness in an aggregate the event of a Change of Control in accordance with provisions similar to Section 4.09 or (b) at a purchase price not greater than 100% of the principal amount not thereof in accordance with provisions similar to exceed $10.0 million in any twelve-month periodSection 4.06; provided that no proceeds from 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 has completed the repurchase or redemption of all Securities validly tendered for payment in connection with such Change of Control Offer or Asset Sale Offer; (11) cash payments in lieu of the issuance and sale of Qualified fractional shares of the Issuer’s Equity Interests used upon the exercise, conversion or exchange of any stock options, warrants, other rights to make a payment purchase Equity Interests or other convertible or exchangeable securities or any other transaction otherwise permitted by this Section 4.04; (12) payments or distributions to holders of Equity Interests of the Issuer or any of the Restricted Subsidiaries pursuant to clause appraisal or dissenter rights required under applicable law or pursuant to a court order in connection with any merger, amalgamation, arrangement, consolidation or sale, assignment, conveyance, transfer, lease or other disposition of assets; and (213) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Equity Interests of the Issuer or preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.03 to the extent such dividends are included in the definition of “Consolidated Interest Expense.”; The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or (3)(B) above shall increase securities proposed to be transferred or issued by the Issuer or a Restricted Subsidiary, as the case may be, pursuant to the Restricted Payments BasketPayment. The amount of any Restricted Payment paid in cash shall be its face amount.

Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2) immediately after giving effect to such Restricted Payment, the Issuer cannot Company could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; orand (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2Section 4.09(b)(2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b7)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (A) $50,000,000, plus (B) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from April 1, 2018 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (BC) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors of the Company) of any assets to be used in a Permitted Business received by the Issuer Company either (x) as contributions to the common equity of the Issuer Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) 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 (CD) the aggregate amount by which Indebtedness incurred by of the Issuer Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerCompany’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerCompany) of Indebtedness into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange), plus (DE) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (EF) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the IssuerCompany’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerCompany’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 4.09(a)(3)(F) and were not previously repaid or otherwise reduced. (b) The foregoing provisions of Section 4.09(a) shall not prohibit: (1) the payment by the Issuer 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 Indenture; (2) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsInterests (other than to the Company or any of its Subsidiaries); (3) the repurchase, redemption, defeasance or other than pursuant 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 clause be incurred under Section 4.08 and the other terms of this Indenture; (8) below4) the repurchase, the redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Issuer Company held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), pursuant to any 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 the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million 4,000,000 during any calendar year (with it being understood, however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in carried over to subsequent calendar years, so long as 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 consideration applied to the payment redemption of Restricted Payments Equity Interests pursuant to this clause (3), plus (CSection 4.09(b)(4) the net cash proceeds of shall in no event exceed $8,000,000 in any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3calendar year); (45) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent 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 repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to 1.0satisfy tax withholding or similar tax obligations with respect thereto; (7) other additional Restricted Payments in an amount not to exceed $50.0 million; provided that aggregate amount, when taken together with all Restricted Payments made pursuant to this clause (7Section 4.09(b)(7) shall and then outstanding, does not exceed $25.0 million in the aggregate in any twelve-month period30,000,000; or (8) the purchase payment of dividends on the Company’s Qualified Equity Interests (other than preferred stock) or retirement the payment of Class B Common Stock any dividend to any parent of the Issuer 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 Permitted Holder in an aggregate amount not public equity offering after the Issue Date of such Qualified Equity Interests of the Company or contributed to exceed $10.0 million in the Company as common equity capital by any twelve-month periodparent from any public equity offering of such Qualified Equity Interests of any direct or indirect parent of the Company; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Section 4.09(b)(2) or (3)(B) above shall increase the 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 cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or a Restricted Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment.

Limitations on Restricted Payments. (a) The Company and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could incur at least $1.00 of Indebtedness pursuant to Section 4.06(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 on or after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 2011 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Company from (1) any capital contribution to the Company after February 1, 2011 or any issue or sale after February 1, 2011 of Qualified Stock (other than (x) as contributions to the common equity any Subsidiary of the Issuer after the Issue Date Company or (y) from any Excluded Contribution) and (2) the issuance and issue or sale after February 1, 2011 of Qualified Equity Interests after the Issue Date, any Indebtedness or other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) securities of the Notes Company convertible into or (B) any such proceeds or assets received from a Subsidiary exercisable for Qualified Stock of the IssuerCompany that have been so converted or exercised, as the case may be, 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 that was treated as constituting a Restricted Payment (or if the Investment was made prior to February 1, 2011, that would have constituted a Restricted Payment if made after February 1, 2011, if such disposition or repayment results in cash received by the Issue DateCompany, the Issuer or any Restricted Subsidiary), an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) the amount of such Investment that was treated (or would have been treated when made) 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 Consolidated Net Income referred to in (A)), plus (D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after February 1, 2011, 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 February 1, 2011, and net only to the extent not included in the calculation of taxesConsolidated 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 (1) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (2) 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 (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 Restricted Payments Basket and were not previously repaid or otherwise reduced$10.0 million. (b) The foregoing provisions shall clauses (ii) and (iii) of Section 4.07(a) will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture Indenture; (2ii) the redemption purchase, redemption, or other acquisition, cancellation or retirement for value of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the Company or constituting an Excluded Contribution) of, shares of Qualified Equity InterestsStock; (3iii) other than the making of Restricted Investments in joint ventures in an aggregate amount made under this clause (iii) not to exceed Excluded Contributions (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (8) belowiii) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (iii); (iv) the payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10.0 million in any fiscal year; provided that immediately after giving effect to any declaration of such dividend, the Company could incur at least $1.00 of Indebtedness pursuant to Section 4.06(a); (v) the purchase, redemption or other acquisition, cancellation or retirement for value of Equity Interests Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in the aggregate since the Issue Date; (vi) the making, by members of the Secured Group, of (A) Investments in any twelve-month periodPermitted Joint Venture (which Investment may be made via an Investment in the JV Holding Company, if any, owning such Permitted Joint Venture) or (B) dividends to the Company or any of its other Restricted Subsidiaries, in an aggregate amount under this clause (vi) not to exceed the amount of cash and Cash Equivalents received by the Secured Group after the Issue Date constituting Excluded Fee Payments; provided and (vii) Restricted Payments, if any, made in connection with the repurchase, redemption, defeasance or other acquisition of the Existing Notes pursuant to the exchange offers described in the Offering Memorandum; provided, however, that no proceeds from each Restricted Payment described in clauses (i), (ii) and (vi)(A) of this Section 4.07(b) shall be taken into account for purposes of computing the issuance and sale aggregate amount of Qualified Equity Interests used to make a payment all Restricted Payments pursuant to clause (2iii) of Section 4.07(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 Section 4.07(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 (3)(Bii) above shall increase if the Restricted Payments BasketCommon Equity is not then traded on the New York Stock Exchange, NYSE Amex or Nasdaq Stock 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 $10.0 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) The Issuer shall Company will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer Company cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs July 1, 2002 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds received by the Issuer Company either (x) as contributions to the common equity of the Issuer Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c6(b) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes, plus (C) the aggregate amount by which Indebtedness incurred by the Issuer Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerCompany’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerCompany) into Qualified Equity Interests (less the amount of any cash, or the fair value Fair Market Value of assets, distributed by the Issuer Company 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 IssuerCompany’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerCompany’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall will not prohibit: (1) the payment by the Issuer Company or any Restricted Subsidiary of any dividend 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 Indenture; (2) the redemption of any Equity Interests of the Issuer Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Subordinated Indebtedness of the Company 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 terms of this Indenture; (4) the redemption of any Equity Interests of the Issuer Company or any Restricted Subsidiary of the Company held by officers, directors any of the Company’s (or employees any of its Restricted Subsidiaries’) current or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance ) pursuant to any director or termination of employment employee equity subscription agreement or servicestock option agreement; provided that the aggregate cash consideration price paid for all such redemptions shall redeemed Equity Interests may not exceed $2.5 million in any twelve-month period (with unused amounts in any 12-month period being permitted to be carried over into the next 12-month period); provided, further, that the amounts in any 12-month period may be increased by an amount not to 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 the Company or contributed to the Issuer any of its Restricted Subsidiaries from the issuance and sale of Company’s Equity Interests (other than Disqualified Equity Interests) to any such directors or employees that occurs after the Issue Date of Qualified Equity Interests of to the Issuer to its officers, directors or employees that extent such proceeds have not otherwise been applied to the payment of Restricted Payments pursuant to this clause (3), plus (CB) the net cash proceeds of any “key-man” key man life insurance policies that have not been applied to received by the payment of Company and its Restricted Payments pursuant to this clause (3)Subsidiaries after the Issue Date; (45) the redemption of Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees in connection with the exercise or vesting of any equity compensation (including, without limitation, stock options, restricted stock and phantom stock) in order to satisfy the Company’s or such Restricted Subsidiary’s tax withholding obligation with respect to such exercise or vesting; (6) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents represent a portion of the exercise price thereof; (57) Restricted Payments pursuant to in the Transactions; (6) Restricted Payments if after giving effect thereto event of a Change of Control, the Issuer’s Net Leverage Ratio is redemption of Subordinated Indebtedness of the Company or any Guarantor, in each case, at a redemption price not greater than 3.0 101% of the principal amount (or, if such Subordinated Indebtedness were issued with original issue discount, 101% of the accreted value) of such Subordinated Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to 1.0; such redemption, the Company (7or a third party to the extent permitted by this Indenture) other Restricted Payments has made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has purchased all Notes validly tendered and not withdrawn in an amount not to exceed $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month periodconnection with such Change of Control Offer; or (8) in the purchase or retirement event of Class B Common Stock an Asset Sale that requires the Company to offer to repurchase Notes pursuant to Section 4.15 hereof, redemption of Subordinated Indebtedness of the Issuer from Company or any Permitted Holder Guarantor, in an aggregate each case, at a redemption price not greater than 100% of the principal amount not (or, if such Subordinated Indebtedness were issued with original issue discount, 100% of the accreted value) of such Subordinated Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that (A) prior to exceed $10.0 million in any twelve-month periodsuch redemption, the Company has made a Net Proceeds Offer with respect to the Notes pursuant to the provisions of Section 4.15 hereof and has purchased all Notes required to be purchased by it under such Section; provided that (a) in the case of any Restricted Payment pursuant to clause (3), (7) or (8) above, no proceeds from the 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 clause (2) or (3)(B3) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. Section 5.12 of the Indenture is hereby amended and restated to read as follows: (a) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any Restricted Payment after the Issue Date of the Securities if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3i) the amount of such Restricted Payment (the amount of such Restricted Payment, if other than in cash, will be determined by the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b))the Securities, exceeds the sum of: (1) 50 percent of the “Restricted Payments Basket”) of (without duplication): (A) 50% of Company's Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available since January 1, 1996 (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% 100 percent of such aggregate deficit), plus plus (B2) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) derived from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company and its Restricted Subsidiaries that is not Disqualified Stock (other than (A) any such proceeds which are used a sale 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 (CCompany) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to after the Issue Date is reduced on of Securities but only to the Issuer’s balance sheet upon the conversion or exchange extent not applied under clause (other than by a Subsidiary c) of the Issuerdefinition of Restricted Payments set forth in Section 1.2 hereof, plus (3) into Qualified Equity Interests (less 100 percent of the principal amount of any cashIndebtedness of the Company or a Restricted Subsidiary that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, or plus (4) 100 percent of the fair value of assets, distributed aggregate amounts received by the Issuer Company or any Restricted Subsidiary upon the sale, disposition or liquidation (including by way of dividends or other return of capital) of any Investment but only to the extent (x) not included in Consolidated Net Income pursuant to clause (2) above and (y) that the making of such conversion or exchangeInvestment constituted a Restricted Investment made pursuant to this Section 5.12(a)(i), plus plus (D5) in the case 100 percent of the disposition principal amount of, or repayment if issued at a discount the accreted value of, any Indebtedness or other obligation that is the subject of or return on any Investment that was treated as a Restricted Payment made guaranty by the Company which is released after the Issue DateDate of the Securities, an amount (but only to the extent not included that the granting of such guaranty constituted a Restricted Payments under the definition set forth in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and Section 1.2 hereof; or (ii) the amount Company or its Restricted Subsidiaries would be unable to incur an additional $1.00 of such Investment that was treated Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in the covenant set forth in Section 5.13(a) hereof; or (iii) a Default or Event of Default has occurred and is continuing or occurs as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reducedconsequence thereof. (b) The foregoing Notwithstanding the foregoing, the provisions shall of this Section 5.12 will not prohibit: prevent: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, thereof if the payment thereof would have complied with the limitations of this Indenture on the date of declaration the payment would have complied with the provisions or (ii) retirement of this Indenture ; (2) the redemption of any Equity Interests shares of the Issuer Company's Capital Stock or any Restricted the Company's or a Subsidiary of the Company's Indebtedness for, in exchange for, or out of the proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, Qualified Equity Interests; other shares of its Capital Stock (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estatesDisqualified Stock), 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2), (3), (4), (5), (6), (7) or (8) 5) of Section 4.11(b4.09(b)), exceeds the sum (the “Restricted Payments Basket”"RESTRICTED PAYMENTS BASKET") of (without duplication): (Ai) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the first full fiscal quarter in which commencing after the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plusPLUS (Bii) 100% of the aggregate net proceeds, including cash proceeds and the Fair Market Value of 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 Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) Section 6 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes; PROVIDED, plus (C) the aggregate amount by which Indebtedness incurred by HOWEVER, that the Issuer or any Restricted Subsidiary subsequent delivers 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibitTrustee: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2), (3), (4), (5), (6), (7) or (8) 5) of Section 4.11(b)the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (Aa) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (Bb) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) Section 6 of the Notes Notes, or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus (Cc) 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), plus (Dd) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (Ee) 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 Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) . The foregoing provisions shall will not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend 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 Indenture; (2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests Subordinated Indebtedness of the Issuer held by officersor any Restricted Subsidiary (a) in exchange for, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination out 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 proceeds of 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 substantially concurrent issuance and sale after the Issue Date of of, Qualified Equity Interests or (b) in exchange for, or out of the Issuer proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to its officers, directors be incurred under Section 4.11 and the other terms of this Indenture or employees that have not been applied (c) upon a Change of Control or in connection with an Asset Sale to the payment of Restricted Payments extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Sections 4.09 and 4.17 and purchased all Notes validly tendered pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied relevant offer prior to the payment of Restricted Payments pursuant to this clause (3)redeeming such Subordinated Indebtedness; (4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents represent a portion of the exercise price thereof;; or (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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase repurchase or retirement redemption of Class B Common Stock Equity Interests of the Issuer from any Permitted Holder director, officer or employee of the Issuer or any Subsidiary of the Issuer upon the death, disability, retirement or other termination of any such director, officer or employee in an aggregate amount not to exceed $10.0 1.0 million in any twelve-month periodfiscal year of the Issuer; provided that (a) in the case of any Restricted Payment pursuant to clause (3) or (5) above, no proceeds from the Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests that are used to make a payment pursuant to clause (2) or (3)(B3) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Hovnanian and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.05(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 on or after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of Hovnanian on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 2011 and ending on the last day of the Hovnanian’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of, and the Fair Market Value of Property received by the Issuer either by, Hovnanian from (x1) as contributions any capital contribution to the common equity of the Issuer Hovnanian after the Issue Date or any issue or sale after the Issue Date of Qualified Stock (yother than (a) to any Subsidiary of Hovnanian, (b) any Excluded Contribution and (c) from the issuance Concurrent Offerings) and (2) the issue or sale of Qualified Equity Interests after the Issue DateDate of any Indebtedness or other securities of Hovnanian convertible into or exercisable for Qualified Stock of Hovnanian that have been so converted or exercised, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) of as the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuercase may be, 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 that was treated as constituting a Restricted Payment (or if the Investment was made prior to the Issue Date, that would have constituted a Restricted Payment if made after the Issue Date, if such disposition or repayment results in cash received by Hovnanian, the Issuer or any Restricted Subsidiary), an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) the amount of such Investment that was treated (or would have been treated when made) 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 Consolidated Net Income referred to in (A)), plus (D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after 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 the Issue Date, and net only to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), an amount equal to the lesser of (x) the proportionate interest of 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 designation as an Unrestricted Subsidiary, 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 Restricted Payments Basket and were not previously repaid or otherwise reduced$10.0 million. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) of this Section 3.06 will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture the Indenture; (2ii) the purchase, redemption or other acquisition, cancellation or retirement for value of any Equity Interests shares of the Issuer or any Restricted Subsidiary Capital Stock of Hovnanian in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of Hovnanian or constituting an Excluded Contribution) of, shares of Qualified Equity InterestsStock; (3iii) other than the making of Restricted Investments in joint ventures in an aggregate amount made under this clause (iii) not to exceed Excluded Contributions (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (8) below, the redemption of Equity Interests iii) as a result of the Issuer repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (iii)); (iv) the payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10.0 million in any fiscal year; provided that immediately after giving effect to any declaration of such dividend, Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.05(a) hereof; and (v) 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 Hovnanian or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of Hovnanian 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month periodthe aggregate since the Issue Date; provided provided, however, that no proceeds from each Restricted Payment described in clauses (i) and (ii) of this paragraph (b) shall be taken into account for purposes of computing the issuance and sale aggregate amount of Qualified Equity Interests used to make a payment all Restricted Payments pursuant to clause (2iii) of paragraph (a) of this Section 3.06. (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 Hovnanian 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 paragraph (a) of this Section 3.06 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 (3)(Bii) above shall increase if the Restricted Payments BasketCommon Equity is not then traded on the New York Stock Exchange, NYSE Amex or The Nasdaq Stock 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 $10.0 million) of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of Hovnanian.

Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) immediately after giving effect to such transaction on a pro forma basis, the Issuer cancould not incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio ExceptionSection 4.03(a); or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses Section 4.04(b) (2), (3), (4), (5), (6), ) through (7) or and (8) of Section 4.11(b9) through (15)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on from the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors of the Issuer) of any assets to be used in a Permitted Business received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than Date (A) provided that such amount will not include any such net cash proceeds which are used from sales of Equity Interests to redeem Notes in accordance with paragraph 5(c) of the Notes or (B) extent utilized for any such proceeds or assets received from a Subsidiary of the IssuerRestricted Payment pursuant to Section 4.04(b)(4)(a), plus (C) the aggregate amount by which Indebtedness incurred by of 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) of Indebtedness issued subsequent to the Issue Date into Qualified Equity Interests (less the amount of any cash, 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 that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition 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 Basket under this Section 4.04(a)(3) and were not previously repaid or otherwise reduced, plus (F) 100% of the 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 a payment on such guarantee), but only to the extent that such guarantee was treated as a Restricted Payment pursuant to this paragraph (a) when made. (b) The foregoing 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 the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Indenture; (2) the redemption 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 Issuer or any of its Subsidiaries); (3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale incurrence of, Qualified Equity InterestsRefinancing Indebtedness permitted to be incurred under Section 4.03 and the other terms of this Indenture; (34) the purchase, repurchase, redemption, defeasance or other than pursuant to clause (8) below, the redemption acquisition or retirement for value of Equity Interests of the Issuer held by officersany future, directors or employees 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), upon their deathin each case, disabilitypursuant to any equity subscription agreement, retirementstock option agreement, severance shareholders’ agreement or termination similar agreement or benefit plan of employment or serviceany kind; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during in any calendar year (with unused amounts in any calendar year being available carried over to be used 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 the following no event exceed $10.0 million in any calendar year, but not ); provided further that such amount in any succeeding calendar yearfiscal year may be increased by an amount not to exceed: (a) plus the net cash proceeds received by the Issuer or any of its Restricted Subsidiaries from the sale of Equity Interests (Bother than Disqualified Equity Interests) of the Issuer (or a direct or indirect parent thereof to the extent contributed to the Issuer) to officers, directors or employees of the Issuer or any Restricted Subsidiary of the Issuer (or 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 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 net cash proceeds received by or contributed 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 issuance and sale after the Issue Date Issuer or any Restricted Subsidiary (or a direct or indirect parent thereof) in connection with a repurchase of Qualified Equity Interests of the Issuer from such Persons will not be deemed to its officers, directors constitute a Restricted Payment for purposes of this covenant or employees that have not been applied to any other provision of 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)Indenture; (45) 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 that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent a portion of the exercise price thereof; (57) Restricted Payments pursuant the repurchase of Equity Interests upon vesting of restricted stock restricted stock units, performance share units or similar equity incentives to the Transactionssatisfy tax withholding or similar tax obligations with respect thereto; (6) Restricted Payments if after giving effect thereto 8) the payment of dividends on the Issuer’s Net Leverage 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, as the 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 the issuance of fractional shares of the Issuer’s Equity Interests upon the exercise, 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; (12) the declaration and payment of 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 the Ratio is Exception described in Section 4.03(a); (13) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Indebtedness (a) at a purchase price not greater than 3.0 101% of the principal amount of such 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 1.0or 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; (714) other distributions for the purpose of making an Investment in a Joint Venture that, if such Investment were made by the Issuer, would be permitted to be made as a Permitted Investment under clause (20) 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 amount not to exceed $50.0 million; provided that aggregate amount, when taken together with all Restricted Payments made pursuant to this clause (7Section 4.04(b)(16) shall and then outstanding, does not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period15.0 million; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Sections 4.04(b)(2) or (3)(B3) above shall increase the 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 cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Issuer or a Restricted Subsidiary of the Issuer, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities (other than cash or Cash Equivalents) with a Fair Market Value of $10.0 million or more that are required to be valued by this Section 4.04 will be determined by the Board of Directors of the Issuer. 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.

Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment:Payment on a pro forma basis, (1i) a Default or an Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;continuing, (2ii) the Issuer canCompany is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; Debt Incurrence Ratio, or (3iii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries, including after the Issue Date (other than giving effect to such proposed Restricted Payments made pursuant to clauses (2)Payment, (3)on and after January 1, (4)2003, (5)would exceed without duplication, (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on the first day of the fiscal quarter in which the Issue Date occurs January 1, 2003, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation for which the consolidated financial statements of the Company are available (or, if such in the event the Consolidated Net Income shall be of the Company for such period is a deficit, then minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer Company after the Issue Date January 1, 2003 from a Capital Contribution or (y) from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company (other than (A1) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) one of the Notes Company’s Subsidiaries or (B2) any such proceeds or assets received from to the extent applied in connection with a Subsidiary of the IssuerQualified Exchange after January 1, 2003), plus (C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent except in each case, in order to avoid duplication, to the Issue Date is reduced on extent any such payment or proceeds have been included in the Issuer’s balance sheet upon calculation of Consolidated Net Income, an amount equal to the conversion or exchange net reduction in Investments (other than by a returns of or from Permitted Investments) in any Person resulting from distributions on or repayments of any Investments, including payments of interest on Indebtedness, dividends, repayments of loans or advances, or other distributions or other transfers of assets, in each case to the Company or any Subsidiary of the Issuer) into Qualified Equity Interests Company or from the Net Cash Proceeds from the sale of any such Investment (less valued in each case as provided in the definition of “Investments”), not to exceed, in each case, the amount of any cashInvestments made after January 1, or the fair value of assets, distributed 2003 by the Issuer Company or any Subsidiary of the Company in such Person (which Investments constituted (or would have constituted) Restricted Subsidiary upon such conversion or exchangePayments), plus (D) in 50% of any cash dividends received by the case Company or any of its Subsidiaries after January 1, 2003 from an Unrestricted Subsidiary of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue DateCompany, an amount (to the extent that such dividends were not otherwise included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% Income 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 Company for such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxesperiod, plus (E) upon a Redesignation of an to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted SubsidiarySubsidiary of the Company after January 1, 2003, the lesser of (i1) the Fair Market Value fair market value of the Issuer’s proportionate interest Investment by the Company in such Unrestricted Subsidiary immediately following as of the date on which such RedesignationSubsidiary was originally designated as an Unrestricted Subsidiary (the “Designation Date”) plus the fair market value of any additional Investments in such Unrestricted Subsidiary made by the Company after the Designation Date, if any, and (ii2) the aggregate amount fair market value of such Investments as measured on the Issuer’s Investments date of such redesignation as a Subsidiary, in such Subsidiary each case to the extent such Investments reduced amount was not otherwise included in Consolidated Net Income of the Restricted Payments Basket and were not previously repaid or otherwise reducedCompany. (b) The foregoing provisions shall clauses (ii) and (iii) of paragraph (a), however, will not prohibit: (1i) any dividend, distribution or other payments by any Subsidiary of the Company on its Equity Interests that is paid pro rata to all holders of such Equity Interests; (ii) a Qualified Exchange; (iii) the payment by the Issuer or any Restricted Subsidiary of any dividend on Qualified Capital Stock within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of such declaration the payment would have complied in compliance with the provisions of this Indenture foregoing provisions; (2iv) the redemption of any Equity Interests repurchases of the Issuer or any Restricted Subsidiary in exchange for, or out Capital Stock of the proceeds Company deemed to occur on the exercise of the substantially concurrent issuance and sale of, Qualified Equity Interestsstock options; (3v) payments in lieu of fractional shares not to exceed $2,000,000 in the aggregate; (vi) repurchases of Capital Stock of the Company in accordance with a repurchase program that is approved and adopted by the Board of Directors of the Company and whose primary purpose is to provide Capital Stock to satisfy the obligations of the Company under stock option plans and employee stock purchase plans not to exceed $3,000,000 per annum; (vii) that portion of Investments the payment for which consists exclusively of the Qualified Capital Stock; or (viii) other than Restricted Payments not to exceed $30,000,000 in the aggregate. (c) The full amount of any Restricted Payment made pursuant to the foregoing clauses (i), (iii), (v), (vi), and (viii) (but not pursuant to clause (8) belowii), the redemption (iv) and (vii)) of Equity Interests paragraph (b) above, however, will be counted as Restricted Payments made for purposes of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination calculation 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 amount of Restricted Payments available to be used made referred to in the following calendar yearclause (iii) of paragraph (a) above. (d) For purposes of this Section 4.9, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by Restricted Payment made or contributed returned, if other than in cash, shall be the fair market value thereof, as determined in the good faith reasonable judgment of the Board of Directors of the Company, unless stated otherwise, at the time made or returned, as applicable. Additionally, not later than the date of making each Restricted Payment, the Company shall deliver an Officers’ Certificate to the Issuer from Trustee describing in reasonable detail the issuance and sale after nature of such Restricted Payment, stating the Issue Date amount of Qualified Equity Interests of such Restricted Payment, stating in reasonable detail the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments provisions hereof pursuant to this clause (3), plus (C) which such Restricted Payment was made and certifying that such Restricted Payment was made in compliance with 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketterms hereof.

Limitations on Restricted Payments. (a) The Issuer shall 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 shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added 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 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 clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (Aa) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 1999 and ending on the last day of the Company's fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event 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 Issuer either Company from (x1) as contributions any capital contribution to the common equity Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Issuer Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Issue Date Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (yc) from $86.0 million, which is equal to the issuance and sale aggregate principal amount of Qualified the Company's 6- 7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity Interests after prior to the Issue Date, other than plus (A) 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 (Dd) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateJune 9, 1997, an amount (to the extent not included in the computation calculation of the Consolidated Net IncomeIncome referred to in (a)) equal to the lesser of (ix) 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 (iiy) 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 (to the extent not included in the calculation of taxesthe Consolidated Net Income referred to in (a)), plus plus (Ee) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation 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 SubsidiaryPayment 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 (ix) 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $25 million minus (g) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit: : (1A) 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 the payment would have complied with without violation of the provisions of this Indenture ; Indenture; (2B) the repurchase, redemption or retirement of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company 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 Equity Interests; Stock; and (3C) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers 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 ) not to exceed $20 million in the aggregate cash consideration paid for all such redemptions shall not exceed since the Issue Date; provided, however, that each Restricted Payment described in clauses (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 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 cash proceeds received of any amounts paid by the Company or contributed 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 Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests "equity value" of the Issuer 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 officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, 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 $50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon 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) The Company and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added the Company could incur at least $1.00 of Indebtedness pursuant to Section 4.06(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 on or after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including November 1, 2012 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity of the Issuer Company after the Issue Date or any issue or sale after the Issue Date of Qualified Stock (other than (x) to any Subsidiary of the Company or (y) from any Excluded Contribution) and (2) the issuance and issue or sale of Qualified Equity Interests on or after the Issue Date, Date of any Indebtedness or other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) securities of the Notes Company convertible into or (B) any such proceeds or assets received from a Subsidiary exercisable for Qualified Stock of the IssuerCompany that have been so converted or exercised, as the case may be, 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 that was treated as constituting a Restricted Payment (or if the Investment was made prior to the Issue Date, that would have constituted a Restricted Payment if made after the Issue Date, if such disposition or repayment results in cash received by the Company, the Issuer or any Restricted Subsidiary), an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 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 (iiy) the amount of such Investment that was treated (or would have been treated when made) as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net (to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), plus (ED) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation Restricted Subsidiary after 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 SubsidiaryPayment made after the Issue Date, and only to the extent not included in the calculation of Consolidated Net Income referred to in (A)), an amount equal to the lesser of (ix) 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the aggregate amount Designation Amount at the time of the Issuersuch Subsidiary’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduceddesignation as an Unrestricted Subsidiary. (b) The foregoing provisions shall Clauses (i) (except in the case of clauses (iii)(B), (iii)(C), (iv) and (v) below), (ii) and (iii) of Section 4.07 (a) will not prohibit: (1i) 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 the payment would have complied with without violation of the provisions of this Indenture Indenture; (2ii) the redemption purchase, repayment, repurchase, redemption, defeasance or other acquisition, cancellation or retirement for value of any Equity Interests Subordinated Indebtedness of the Issuer Issuer, the Company or any Restricted Subsidiary or 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 or constituting an Excluded Contribution) of, shares of Qualified Stock; (A) the purchase, repayment, redemption, repurchase, defeasance or other acquisition, cancellation or retirement for value of Subordinated Indebtedness of the Issuer, the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsRefinancing Indebtedness; (3B) the purchase, repayment, redemption, repurchase, defeasance or other than acquisition, cancellation or retirement for value of Subordinated Indebtedness of the Issuer, the Company or any Restricted Subsidiary or the making of Restricted Investments in joint ventures: (1) in an aggregate amount not to exceed $50.0 million (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (8) belowB)(1) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (B)(1)); or (2) in an aggregate amount made under this clause (B)(2) not to exceed Excluded Contributions (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (B)(2) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (B)(2)); (C) the purchase, repayment, redemption, repurchase, defeasance or other acquisition, cancellation or retirement for value of Subordinated Indebtedness of the Issuer, the redemption Company or any Restricted Subsidiary or the making of Equity Interests Restricted Investments in joint ventures (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (C) as a result of the Issuer repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (C)), in an aggregate amount not to exceed $150.0 million; provided that, on a pro forma basis after giving effect to any such Restricted Payment, the aggregate fair market value of the Collateral (as determined in good faith by the Company’s chief financial officer) is equal to at least 175% of the aggregate principal amount of Collateralized Debt (such ratio as calculated, the “Collateral Ratio”) as of such date (or, in the case of a Restricted Investment in a joint venture, on the date the Company determines to make such Investment, so long as the Investment is completed within 120 days of such determination date), such fair market value to be determined, with respect to real property Collateral, by reference to book value pursuant to GAAP; (iv) the payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10.0 million in any fiscal year; provided that immediately after giving effect to any declaration of such dividend, the Company could incur at least $1.00 of Indebtedness pursuant to Section 4.06(a); (v) 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, directors officers or employees or former officers, directors officers or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates)) not to exceed $10.0 million in the aggregate since the Issue Date; (vi) the making of cash payments in connection with any conversion or exchange of Permitted Convertible Indebtedness in an aggregate amount since the date of the indenture therefor not to exceed the sum of (a) the principal amount of such Permitted Convertible Indebtedness plus (b) any payments received by the Company, upon their deaththe Issuer or any Restricted Subsidiaries pursuant to the exercise, disability, retirement, severance settlement or termination of employment or service; provided that any related Permitted Bond Hedge; (vii) any payments in connection with (including, without limitation, the aggregate cash consideration paid for all such redemptions shall not exceed purchase of) a Permitted Bond Hedge and the settlement of any related Permitted Warrant (A) $5.0 million during any calendar year (with unused amounts being available to be used in by delivery of shares of the following calendar year, but not in any succeeding calendar year) plus Company’s Capital Stock upon net share settlement of such Permitted Warrant or (B) by (x) set-off of such Permitted Warrant against the amount of any net cash proceeds received by or contributed to the Issuer from the issuance related Permitted Bond Hedge 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 (y) payment of Restricted Payments pursuant to this clause (3), plus (C) the net an amount due upon termination of such Permitted Warrant in Capital Stock or using 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 received upon the exercise exercise, settlement or termination of stock options if the Equity Interests represents a portion of the exercise price Permitted Bond Hedge upon any early termination thereof; (5viii) the purchase, repayment, repurchase, redemption, defeasance or other acquisition, cancellation or retirement for value of any Subordinated Indebtedness (A) at a purchase price not greater than 101% of the principal amount of such Subordinated Indebtedness in the event of a Change of Control in accordance with provisions similar to Section 4.12 hereof or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.10 hereof; provided that, prior to or simultaneously with such purchase, repayment, repurchase, redemption, defeasance or other acquisition, cancellation, or retirement, the Company, the Issuer or any Restricted Payments Subsidiary has made the Change of Control offer pursuant to Section 4.12 hereof or Offer to Purchase pursuant to Section 4.10 hereof, as applicable, with respect to the TransactionsNotes and has completed such repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control offer or Offer to Purchase; (6ix) any payment of cash by the Company, the Issuer or any of the Restricted Payments if after giving effect thereto Subsidiaries in respect of fractional shares of the IssuerCompany’s Net Leverage Ratio is not greater than 3.0 Capital Stock upon the exercise, conversion or exchange of any stock options, warrants or other rights to 1.0;purchase Capital Stock or other convertible or exchangeable securities; and (7x) other Restricted Payments in an amount not to exceed $50.0 million; provided that aggregate amount, when taken together with all other Restricted Payments made pursuant to this clause (7x) shall not to exceed $25.0 million (after giving effect to all subsequent reductions in the aggregate amount of Restricted Investments made pursuant to this clause (x) in any twelve-month period; or (8) the purchase or retirement form of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount cash not to exceed $10.0 million the amount of such Restricted Investment previously made pursuant to this clause (x)); provided, however, that each Restricted Payment described in any twelve-month period; provided that no proceeds from clauses (i) and (ii) of this Section 4.07(b) shall be taken into account for purposes of computing the issuance and sale aggregate amount of Qualified Equity Interests used to make a payment all Restricted Payments pursuant to clause (2iii) of Section 4.07(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 Section 4.07(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 (3)(Bii) above if the Common Equity is not then traded on the New York Stock Exchange, NYSE MKT or Nasdaq Stock 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 $10.0 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. Any restricted payments that were treated as made pursuant to the provisions of the Existing Secured Notes Indenture under the provision of such indenture that is substantially identical to paragraph (iii)(B)(2) of Section 4.07(b) and made prior to the Issue Date shall increase the be treated as Restricted Payments Basketmade under paragraph (iii)(B)(2) of Section 4.07(b) under this Indenture (and subsequent reductions in any Restricted Investments made with such restricted payments shall be given effect as well).

Limitations on Restricted Payments. (a) The Issuer shall Holdings and the Borrower will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless: (1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment; (2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added (A) Holdings could incur at least $1.00 of Indebtedness pursuant to Section 6.03(a) hereof and (B) the Secured Debt Leverage Ratio is less than 4.0 to 1.0; 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 on or after the Issue Date (other than Restricted Payments made pursuant to clauses (2)October 31, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds 2019 does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of: (A) 50% of the Consolidated Net Income for of Holdings on a cumulative basis during the period (taken as one accounting period) commencing on from and including the first day of the first fiscal quarter of Holdings in which the Issue Closing Date occurs to and including ending on the last day of the Holdings’ fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Holdings from (x1) as contributions any capital contribution to the common equity of the Issuer Holdings after the Issue Date October 31, 2019 or (y) from the issuance and any issue or sale after October 31, 2019 of Qualified Equity Interests after the Issue Date, Stock (other than (A) to 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 Holdings) and (2) the Issuerconversion, exchange or exercise, as the case may be, on or after October 31, 2019 of any Indebtedness or other securities of Holdings or the Borrower convertible into or exchangeable or exercisable for Qualified Stock of Holdings, 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 that was treated as constituting a Restricted Payment (or if the Investment was made prior to October 31, 2019, that would have constituted a Restricted Payment if made after October 31, 2019, if such disposition or repayment results in cash received by Holdings, the Issue DateBorrower or any Restricted Subsidiary), an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (i) 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 and Investment, including by dividend, distribution or sale of Capital Stock (ii) to the amount extent not included in the calculation of such Investment that was treated as a Restricted Payment, Consolidated Net Income referred to in either case, less the cost of the disposition of such Investment and net of taxes(A)), plus (ED) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation Restricted Subsidiary after October 31, 2019, in accordance with the definition of “Unrestricted Subsidiary” (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated under this Agreement as a Restricted SubsidiaryPayment made after October 31, 2019, and only to the extent not included in the calculation of Consolidated Net Income referred to in (A)), an amount equal to the lesser of (ix) the proportionate interest of Holdings 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 the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the aggregate amount Designation Amount at the time of the Issuersuch Subsidiary’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduceddesignation as an Unrestricted Subsidiary. (b) The foregoing provisions shall Clause (a) of this Section 6.04 (provided that in the case of clauses (v) and (x) below no Default or Event of Default has occurred and is continuing at the time of such payment) will not prohibit: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after of its declaration or the date giving of declaration thereofnotice of such irrevocable redemption, as applicable, if such dividend or such payment could have been made on the date of its declaration the payment would have complied with or provision of notice, as applicable, without violation of the provisions of this Indenture Agreement; (2ii) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests[reserved]; (3iii) other than [reserved]; (iv) the payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10.0 million in any fiscal year; provided that immediately after giving effect to any declaration of such dividend, (A) Holdings could incur at least $1.00 of Indebtedness pursuant to clause the proviso to Section 6.03(a) and (8) belowB) the Secured Debt Leverage Ratio is less than 4.0 to 1.0; (v) the purchase, the redemption or other acquisition, cancellation or retirement for value of Equity Interests Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Issuer Holdings or any Subsidiary held by officersany present, directors or employees future or former officers, directors directors, managers, employees or employees consultants of Holdings 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 (A) $5.0 2.5 million during in any calendar year (with unused amounts in any calendar year being available carried over to be used in succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $5.0 million in any calendar year, but not ); provided that such amount in any succeeding calendar year) plus year may be increased by an amount not to exceed: (BA) the amount of any net cash proceeds received by from the sale of Qualified Stock of Holdings to any future, present or contributed former officers, directors, managers, employees or consultants of Holdings, any of its Subsidiaries that occurs after October 31, 2019, to the Issuer extent the cash proceeds from the issuance and sale after the Issue Date of such Qualified Equity Interests of the Issuer to its officers, directors or employees that Stock have not otherwise been applied to the payment of Restricted Payments pursuant to this clause by virtue of Section 6.04(a)(iii)(B) above; plus (3)B) the cash proceeds of key man life insurance policies received by Holdings and the Restricted Subsidiaries after October 31, plus 2019; less (C) the net cash proceeds amount of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments previously made pursuant to clauses (A) and (B) of this clause (3v); provided that Holdings may elect to apply all or any portion of the aggregate increase contemplated by clauses (A) and (B) of this clause (v) in any calendar year; (4vi) the making of cash payments in connection with any conversion or exchange of Permitted Convertible Indebtedness in an aggregate amount since the date of the indenture therefor not to exceed the sum of (A) the principal amount of such Permitted Convertible Indebtedness plus (B) any payments received by Holdings, the Borrower or any Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge; (vii) any payments in connection with (including the purchase of) a Permitted Bond Hedge and the settlement of any related Permitted Warrant (A) by delivery of shares of Holdings’ Capital Stock upon net share settlement of such Permitted Warrant or (B) by (x) set-off of such Permitted Warrant against the related Permitted Bond Hedge and (y) payment of an amount due upon termination of such Permitted Warrant in Capital Stock or using cash received upon the exercise, settlement or termination of a Permitted Bond Hedge upon any early termination thereof; (viii) [reserved]; (A) any payment of cash by Holdings, the Borrower or any of the Restricted Subsidiaries in respect of fractional shares of Holdings’ Capital Stock upon the exercise, conversion or exchange of any stock options, warrants or other rights to purchase Capital Stock or other convertible or exchangeable securities and (B) payments made or expected to be made by Holdings, the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar taxes payable in connection with the exercise, conversion, settlement, exchange or vesting of Capital Stock by any future, present or former officer, employee, director, manager or consultant and repurchases of Equity Interests that occur or are Capital Stock deemed to occur upon the exercise exercise, conversion, settlement or exchange of stock options options, warrants or other rights to purchase Capital Stock or other convertible or exchangeable securities if the Equity Interests such Capital Stock represents all or 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; (7x) other Restricted Payments in an amount not to exceed $50.0 million; provided that aggregate amount, when taken together with all other Restricted Payments made pursuant to this clause (7x) shall not to exceed $25.0 10.0 million (after giving effect to any return of capital with respect to any Restricted Investments made under this clause (x) in the aggregate form of cash); (xi) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 6.11; and (xii) Investments in any twelve-month period; or Permitted Joint Venture (8) which Investment may be made via an Investment in the purchase or retirement of Class B Common Stock of the Issuer from any JV Holding Company, if any, owning such Permitted Holder Joint Venture) in an aggregate amount not to exceed at any one time outstanding (measured at the time made) (1) $10.0 182.3 million in (which amount represents the aggregate amount of such Investments existing on October 31, 2019) plus (2) the sum of (a) $100.0 million and (b) 100% of the amount of cash and Cash Equivalents received by any twelve-month periodof the Borrower, Holdings, any Subsidiary Guarantor or any JV Holding Company from any such Permitted Joint Venture following October 31, 2019 and ending on the last day of the fiscal quarter of Holdings immediately preceding the date of such Investment for which financial statements have been provided pursuant to Section 6.04 hereof; provided that no proceeds from after giving effect to such Investment, the issuance ratio of total Indebtedness to (x) “total inventories” less (y) “inventory not owned” (as of the last day of the Most Recent Fiscal Quarter) for all such Permitted Joint Ventures would not be greater than 55% (as of the last day of the Most Recent Fiscal Quarter); provided, however, that each Restricted Payment described in clauses (i) and sale (v) of Qualified Equity Interests used to make a payment this Section 6.04(b) shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (2iii) of Section 6.04(a). For purposes of the proviso in Section 6.04(b)(xii), the amount of “Indebtedness” outstanding at any one time shall be calculated as the sum of (x) the aggregate principal amount of all Indebtedness of Permitted Joint Ventures outstanding as of the last day of the Most Recent Fiscal Quarter plus (y) with respect to any Indebtedness of Permitted Joint Ventures incurred after the provision of the financial statements used for purposes of clause (x) above but prior to the date on which financial statements for a more recent fiscal quarter have been provided (in each case, pursuant to Section 6.12 hereof), the total principal amount or committed principal amount thereof (whether or not borrowed at the time of calculation of the amount of such Indebtedness). (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 Holdings 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 Section 6.04(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 (3)(Bii) if the Common Equity is not then traded on the New York Stock Exchange, the NYSE MKT or Nasdaq Stock 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 $10.0 million) of such Capital Stock or other securities as determined in good faith by the Board of Directors of Holdings. (e) For purposes of determining compliance with this Section 6.04, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of clauses (i) through (xii) of Section 6.04(b) above shall increase or is entitled to be made pursuant to Section 6.04(a) and/or one or more of the exceptions contained in the definition of “Permitted Investments”, the Borrower will be entitled to divide, classify or later reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payments BasketPayment or Investment (or portion thereof) among such clauses (i) through (xii) of Section 6.04(b) and Section 6.04(a) and/or one or more of the exceptions contained in the definition of “Permitted Investments” in a manner that otherwise complies with this covenant.