Common use of Limitations on Restricted Payments Clause in Contracts

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12, 2009 (other than Restricted Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash dividends only), (10), (11) and (12) of Section 4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (i) 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 commencing after May 12, 2009 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 (ii) 100% of the aggregate net proceeds, including cash 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 from the issuance and sale of Qualified Equity Interests after May 12, 2009, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trustee:

Limitations on Restricted Payments. (a) The Issuer will shall not, and will 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2) through ), (3), (4), (5), (7), (8) (with respect to non-cash dividends only9), (10), (11) and or, at any time prior to December 31, 2004, clause (126) of the second paragraph of this Section 4.08(b4.07), exceeds the sum (the “"Restricted Payments Basket”") of (without duplication): (ia) 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 commencing after May 12, 2009 the Issue Date 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 publicly available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (iib) 100% of the aggregate net proceeds, including cash 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, 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 May 12the Issue Date, 2009, plus (c) the aggregate amount by which Indebtedness (other than any such proceeds which are used Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary subsequent to redeem Notes in accordance with Section 6 the Issue Date is reduced on the Issuer's balance sheet upon the conversion or exchange (other than by a Subsidiary of the NotesIssuer) into Qualified Equity Interests (less the amount of any cash, provided that or the fair value of assets, distributed by the Issuer delivers 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 Trustee:extent not included in the computation of Consolidated Net

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash dividends only), (10), (11) and (12) of Section 4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (i) 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 commencing after May 12, 2009 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 (ii) 100% of the aggregate net proceeds, including cash 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 from the issuance and sale of Qualified Equity Interests after May 12, 2009the Issue Date, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trustee:

Limitations on Restricted Payments. (a) The Issuer will Company shall not, and will 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 incur $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio Exceptionwould be at least 2:00 to 1:00; orand (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2), (3), (4), (5), (6) through (7), (8) or (with respect to non-cash dividends only), (10), (11) and (129) of Section 4.08(b)), exceeds would not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (iA) 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 commencing after May 12from April 1, 2009 2013 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 (iiB) 100% of the aggregate net proceeds, including cash and proceeds or the Fair Market Value (as determined by the Board of Directors of the equity Company) of a Person or of any assets to be used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, Permitted Business received by the Issuer Company either (i) as contributions to the common equity of the Company after the Issue Date or (ii) received by the Company from the issuance and sale of Qualified Equity Interests after May 12, 2009the Issue Date, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trusteethan:

Limitations on Restricted Payments. (a) The Issuer will Company shall not, and will 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 Company would have been able to incur at least $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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses Section 4.03(b) (2) through (7), (8) (with respect to non-cash dividends only3), (104), (11) and (12) of Section 4.08(b5), exceeds (6), (7) or (8)), does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (iA) 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 commencing after May 12from January 1, 2009 2017 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 (iiB) 100% of the aggregate net proceeds, including cash and proceeds or the Fair Market Value (as determined by the Board of the equity Directors of a Person or Company) of any assets to be used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, Permitted Business received by the Issuer Company either (i) as contributions to the common equity of the Company after the Issue Date or (ii) received by the Company from the issuance and sale of Qualified Equity Interests after May 12, 2009the Issue Date, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trusteethan:

Limitations on Restricted Payments. (a) The Issuer Company will not, and 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 May 12June 30, 2009 2002 (other than Restricted Payments made pursuant to clauses clause (2) through (7), (8) (with respect to non-cash dividends only3), (104), (115) and or (126) of Section 4.08(b4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (iA) 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 commencing after May 12July 1, 2009 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 (iiB) 100% of the aggregate net proceeds, including cash 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, proceeds received by the Issuer Company either (x) as contributions to the common equity of the Company after June 30, 2002 or (y) from the issuance and sale of Qualified Equity Interests after May 12June 30, 20092002 , other than any such proceeds which are used to redeem Notes in accordance with Section 6 paragraph 6(b) of the Notes, plus (C) the aggregate amount by which Indebtedness incurred by the Company or any Restricted Subsidiary subsequent to June 30, 2002 is reduced on the Company’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) into Qualified Equity Interests (less the amount of any cash, or the Fair Market Value of assets, distributed by the 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 June 30, 2002, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 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 Company’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Company’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions will not prohibit: (1) the payment by the 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; (2) the redemption of any Equity Interests of the 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) 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 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 (or their transferees, estates or beneficiaries under their estates) pursuant to any director or employee equity subscription agreement or stock option agreement; provided that the Issuer delivers aggregate price paid for all such 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) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of Company’s Equity Interests (other than Disqualified Equity Interests) to any such directors or employees that occurs after the Issue Date to the Trustee:extent such proceeds have not otherwise been applied to the payment of Restricted Payments plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (5) 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 deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof; (7) in the event of a Change of Control, the redemption of Subordinated Indebtedness of the Company or any Guarantor, in each case, at a redemption price not greater than 101% of the principal amount (or, if such Subordinated Indebtedness were issued with original issue discount, 101% of the accreted value) of such Subordinated In- debtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to such redemption, the Company (or a third party to the extent permitted by this Indenture) 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 connection with such Change of Control Offer; or (8) in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to Section 4.15 hereof, redemption of Subordinated Indebtedness of the Company or any Guarantor, in each case, at a redemption price not greater than 100% of the principal amount (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 such 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 Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests pursuant to clause (2) or (3) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer will Company shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly: (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), make any unless, at the time of and after giving effect to such Restricted Payment if Payment: no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; 18.5.6.1 the Company would, at the time of such Restricted Payment: (1) a Default shall 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 occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio Exceptiontest set forth in Section 4.10(a); orand (3) the amount of 18.5.6.2 such Restricted Payment, when added to together with the aggregate amount of all other Restricted Payments made after May 12, 2009 by the Company and its Restricted Subsidiaries since the date of this Indenture (other than excluding Restricted Payments made pursuant to permitted by clauses (2) through ), (3), (4), (5), (6), (7), (8) 8), (with respect to non-cash dividends only9), (8), (9), (10), (11) and (1214) of Section 4.08(b4.11(b)), exceeds is not greater than the sum (the “Restricted Payments Basket”) of (sum, without duplication): (i) , of: 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) commencing on from October 1, 2006 to the first (1st) day end of the first full Company’s most recently ended fiscal quarter commencing after May 12, 2009 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income shall be for such period is a deficit, minus less 100% of such aggregate deficit), ; plus (i) 100% of the aggregate net cash proceeds and (ii) 100% of the aggregate net proceedsFair Market Value of the property and assets other than cash, in each case, received by the Company after the date of this Indenture as a contribution to its equity capital or from the issue or sale (other than to a Restricted Subsidiary of the Company) of Qualified Equity Interests, including upon the exercise of options or warrants, or from the issue or sale (other than to a Restricted Subsidiary of the Company) of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for Qualified Equity Interests, together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange; plus to the extent that any Restricted Investment that was made after the date of this Indenture is sold or otherwise liquidated or repaid for cash or Cash Equivalents, the return of capital in cash or Cash Equivalents with respect to such Restricted Investment (less the cost of disposition, if any); plus to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary after the date of this Indenture or is merged into the Company or a Restricted Subsidiary or transfers all or substantially all its assets of the Company or a Restricted Subsidiary, the Fair Market Value of the equity Investment of the Company and its Restricted Subsidiaries in such Subsidiary (or the assets so transferred, if applicable) as of the date of such redesignation (other than to the extent of such Investment in such Unrestricted Subsidiary that was made as a Person or of assets used in or constituting a line of business, in each case Permitted Investment); plus any amount which becomes or becomes owned by previously treated as a Restricted Subsidiary, received Payment on account of any guarantee entered into by the Issuer from Company or a Restricted Subsidiary upon the issuance and sale unconditional release of Qualified Equity Interests after May 12, 2009, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trustee:guarantee.

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12, 2009 (other than Restricted Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash dividends only), (10), (11) and (1211) of Section 4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (i) 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 commencing after May 12, 2009 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 (ii) 100% of the aggregate net proceeds, including cash 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 from the issuance and sale of Qualified Equity Interests after May 12, 2009, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trustee:

Limitations on Restricted Payments. (a) The Issuer Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1i) a Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof; (2ii) the Issuer cannot Company would be unable to incur an additional $1.00 of additional Senior Indebtedness pursuant to under the Coverage Ratio Exceptionprovisions of Section 5.04(a); or (3iii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after May 12, 2009 (other than Restricted Payments those made pursuant to clauses the provisions of clause (2) through (7A), (8) (with respect to non-cash dividends onlyC), (10D), (11E) and or (12G) of Section 4.08(b5.06(b)) made after the date of this Indenture, exceeds the sum of: (the “Restricted Payments Basket”) of (without duplication): (ia) 50% of the Company's Consolidated Net Income for accrued during the period (taken as one accounting period) commencing on the first (1st) day of the first full fiscal quarter commencing after May 12, 2009 to and including the last day of the fiscal quarter ended immediately prior to from the date of such calculation this Indenture to the end of the Company's most recently ended fiscal quarter for which consolidated financial statements are available results have been reported at the time of such Restricted Payment (or, if such aggregate Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit); plus (b) the aggregate amount of Net Reductions in Investments attributable to Designated Investments made by the Company or any Subsidiary subsequent to the date of this Indenture; provided, plus however, that (1) the Net Reductions in Investments attributable to any Designated Investment for purposes of this calculation shall not exceed the amount of such Designated Investment, (2) to the extent that cash or Cash Equivalents included in any Net Reductions in Investments pursuant to the definition thereof have been or will be included in the computation of Consolidated Net Income for purposes of determining the ability of the Company or any of its Restricted Subsidiaries to make Restricted Payments under clause (iii)(a) of this Section 5.06(a), such cash or Cash Equivalents shall not also be included in computing Net Reductions in Investments for purposes of this clause (iii)(b) and (3) the Company will not be permitted to make any Restricted Payment described in clause (i) or (ii) 100% of the definition of Restricted Payment from any Net Reductions in Investments. (b) Notwithstanding the foregoing, the provisions of clauses (ii) and (iii) of Section 5.06(a) will not prevent: (A) the Company or any Wholly Owned Restricted Subsidiary from making Investments in Subsidiaries, in an aggregate net proceedsamount not to exceed $4,000,000, including cash pursuant to contractual obligations in existence on the date of this Indenture or directly related to projects in existence on the date of this Indenture; (B) the Company from paying any dividend within 60 days after the date of its declaration if such dividend could have been paid on the date of its declaration without violation of this covenant; (C) the Company from purchasing or redeeming and the Fair Market Value retiring any shares of Capital Stock of the equity Company, and paying accrued and unpaid dividends on such shares at the time of such repurchase or redemption, in exchange for, or out of the net proceeds of a Person substantially concurrent sale (other than to a Subsidiary of the Company or an employee stock ownership plan) of, shares of assets used Qualified Capital Stock of the Company; (D) the Company or any Subsidiary from making (1) Investments pursuant to the provisions of employee benefit plans of the Company or any of its Subsidiaries in an aggregate amount not to exceed $500,000 in any fiscal year, or constituting a line (2) making loans to officers of businessthe Company in connection with any relocation of residence, in each case which becomes or becomes owned approved by a Restricted Subsidiary, received by the Issuer from the issuance and sale of Qualified Equity Interests after May 12, 2009, other than any such proceeds which are used to redeem Notes in accordance with Section 6 majority of the Notesindependent members of the Board of Directors of the Company, provided that the Issuer aggregate amount of Investments and loans under this clause (D) shall not exceed $1,000,000 in any fiscal year; (E) the Company or any Wholly Owned Restricted Subsidiary from making Designated Investments (1) in Subsidiaries that are not Wholly Owned Restricted Subsidiaries in an aggregate amount (together with Indebtedness incurred by or on behalf of Subsidiaries that are not Wholly Owned Restricted Subsidiaries in compliance with the provisions of Section 5.05(iii)) not to exceed 5% of Consolidated Tangible Assets or (2) in Joint Ventures in an aggregate amount not to exceed 5% of Consolidated Tangible Assets, provided that: (x) the Person in whom the Investment is made is engaged only in Permitted Businesses; (y) the Company, directly or through Wholly Owned Restricted Subsidiaries of the Company, controls, under an operating and management agreement or otherwise, the day to day management and operation of such Person or otherwise has the right to exercise significant influence over the management and operation of such Person in all material respects (including without limitation the right to control or veto any material act or decision); and (z) after giving effect to such Investment, the aggregate amount of Indebtedness and Investments made by the Company and its Subsidiaries in such Person does not exceed $5,000,000; (F) the Company or any Wholly Owned Restricted Subsidiary from making Designated Investments in Subsidiaries that are not Wholly Owned Restricted Subsidiaries or in Joint Ventures; provided that such Designated Investments are made solely from (1) the net proceeds of a substantially concurrent sale (other than to a Subsidiary of the Company or an employee stock ownership plan) of shares of Qualified Capital Stock of the Company, (2) 50% of the Company's Consolidated Net Income accrued during the period from the date of this Indenture to the end of the Company's most recently ended fiscal quarter for which financial results have been reported at the time of such Restricted Payment or (3) the aggregate amount of Net Reductions in Investments (not to exceed the aggregate amount of such Designated Investments) made by the Company or any Subsidiary subsequent to the date of this Indenture; (G) the Company from redeeming for cash all (but not less than all) of the outstanding shares of the Company's Series 2D Senior Preferred Stock; provided, however, that such redemption shall not be at a price in excess of the redemption price set forth in Section 17.01 of the Company's Amended and Restated Certificate of Incorporation in effect as of the date of this Indenture; and provided, further, that prior to January 13, 1997, the Company shall not redeem any of the outstanding shares of the Company's Series 2D Senior Preferred Stock until the Company delivers to the Trustee:Trustee an Officer's Certificate certifying that the Company's earnings before interest and taxes for the most recent twelve (12) month period calculated in accordance with generally accepted accounting principles equalled or exceeded $27 million. Nothing contained in this further proviso shall affect the Company's right to redeem the Series 2D Senior Preferred Stock no later than January 13, 1997; or (H) the Company from (1) making all regular quarterly dividends, each such quarterly dividend payment not to exceed $487,500 in the aggregate of $2,437.50 per share, on the outstanding shares of the Company's Series 2D Senior Preferred Stock; and (2) making all payments of any dividends of up to 9.75% on the aggregate unpaid amount of any regular quarterly dividend on the outstanding shares of the Company's Series 2D Senior Preferred Stock from the date such regular quarterly dividend should have been paid to the date of the payment of such dividend; in consideration thereof, and except as provided below, the ------------------------------------------------------ Company shall increase the Interest payable on the Notes by one percent (1%) (the "Additional Interest") from the date of this Indenture, such Additional Interest payable as provided for in the Notes. The Company files its financial results with the Securities and Exchange Commission on quarterly and annual reports, and these reports include the Company's earnings after deducting minority interests and before interest, taxes, depreciation, and amortization calculated in accordance with generally accepted accounting principles ("Earnings"). The Company will measure its Earnings for trailing twelve month periods, each period to end on the last day of a fiscal quarter and extend no further than March 31, 1998 (each a "Quarterly Measurement Period"). If the Company's Earnings equal or exceed $36 million for two consecutive Quarterly Measurement Periods, then the Company is relieved of its obligation to pay any future Additional Interest. However, if the Company's Earnings do not equal or exceed $36 million for any subsequent Quarterly Measurement Period, up to and including the Quarterly Measurement Period ending March 31, 1998, the Company is obligated to commence paying Additional Interest until the Company's Earnings again equal or exceed $36 million on a trailing twelve month basis calculated quarterly.

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2) through ), (3), (4), (5), (6), (7), (8) 8), (with respect to non-cash dividends only9), (10), (11) and ), (12) or (13) of Section 4.08(b4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (iA) 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 commencing after May 12, 2009 the Issue Date 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 (iiB) 100% of the aggregate net proceeds, including cash 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, 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 May 12the Issue Date, 2009in each case, other than any such proceeds which are used (x) to redeem Notes in accordance with Section 6 of the NotesNotes or (y) to make Restricted Payments in reliance on clause (3) of Section 4.11(b), plus (C) 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 (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 equal to the lesser of (i) 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 will not prohibit: (1) the payment by the 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; (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) 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 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) payments to Parent or Intermediate Holdings to permit Parent or Intermediate Holdings, and which are used by Parent or Intermediate Holdings, to redeem Equity Interests of Parent or Intermediate Holdings, or payments to redeem Equity Interests of the Issuer, in each case 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 service; provided that the Issuer delivers aggregate cash consideration paid for all such redemptions shall not exceed in any calendar year the sum of (x) $3.0 million (and up to 50% of such $3.0 million not used in any calendar year may be carried forward to the Trustee:next succeeding (but no other) calendar year), plus (y) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale since the Issue Date of Qualified Equity Interests of Parent, Intermediate Holdings or 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 Section 4.11(a) or this clause (4), plus (z) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (4); provided further that the cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary in connection with the repurchase of Qualified Equity Interests will not be deemed to constitute a Restricted Payment under this Indenture; (5) the payment by the Issuer of Permitted Tax Distributions to Parent or Intermediate Holdings; (6) (A) payments by the Issuer to or on behalf of Parent or Intermediate Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Parent, Intermediate Holdings or another direct or indirect parent of the Issuer and (B) payments by the Issuer to or on behalf of Parent or Intermediate Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent, Intermediate Holdings or another direct or indirect parent of the Issuer, in the case of clauses (A) and (B) in an aggregate amount not to exceed $750,000 in any calendar year; (7) repurchases of Equity Interests deemed to occur upon the exercise or conversion of stock options or other Equity Interests, if such repurchased or converted Equity Interests represent a portion of the exercise price thereof; (8) repayments of Subordinated Indebtedness from Net Available Proceeds remaining after a Net Proceeds Offer made pursuant to Section 4.13; (9) distributions to Parent in order to enable Parent to pay customary and reasonable costs and expenses of a public offering of securities of Parent that is not consummated, so long as the net proceeds of such public offering were intended to be contributed to the Issuer; (10) payments and distributions to Parent required to enable Parent to consummate the Transactions; (11) additional Restricted Payments of $5.0 million; (12) Restricted Payments for the purpose of enabling (A) Parent to Retire Parent Debt (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith), or (B) the Issuer or its Restricted Subsidiaries to Retire Parent Debt (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith), in each case, if (x) such Restricted Payment is made solely with the proceeds of Indebtedness of the Issuer and its Subsidiaries incurred in compliance with Section 4.10(b)(15) and Parent Debt is Retired contemporaneously with the incurrence of such Indebtedness, or (y) the Consolidated Net Leverage Ratio as of the date of such Restricted Payment, after giving effect to such Restricted Payment is less than or equal to 4.00 to 1.00 and as of the date of such Restricted Payment, after giving effect to such Restricted Payment, the Issuer has in excess of $20.0 million of unrestricted cash and cash equivalents (as determined in accordance with GAAP) on its consolidated balance sheet and no amounts (other than undrawn letters of credit) shall be outstanding under the revolving portion of any Credit Facility; or (13) Restricted Payments directly or indirectly to Parent or Intermediate Holdings for the purpose of enabling Parent or Intermediate Holdings to pay cash interest on the Parent Debt, in an aggregate amount for all such Restricted Payments made pursuant to this clause (13) not to exceed $25 million in the aggregate; provided that (a) in the case of any Restricted Payment pursuant to clause (4), (8), (11) or (12) above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests described in clause (2), (3) or (4) above shall increase the Restricted Payments Basket. It is understood that any Restricted Payment to Parent described above may be made via a payment to Intermediate Holdings or another parent of the Issuer to then be made to Parent.

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2) through ), (3), (4), (5), (6), (7), (8) 8), (with respect to non-cash dividends only9), (10), ) or (11) and (12) of Section 4.08(b4.11(b)), exceeds the sum (the “"Restricted Payments Basket”") of (without duplication): (ia) 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 commencing after May 12, 2009 the Issue Date to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial fi- nancial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (iib) 100% of the aggregate net proceeds, including cash 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, 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 May 12the Issue Date, 2009in each case, other than any such proceeds which are used (x) to redeem Notes in accordance with Section 6 6(a) of the NotesNotes or (y) to make Restricted Payments in reliance on clause (3) of Section 4.11(b), provided that plus (c) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) incurred by the Issuer delivers or any Restricted Subsidiary subsequent to the Trustee: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 equal to the lesser of (i) 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.

Limitations on Restricted Payments. (a) The Issuer Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, (except as permitted below), unless at the time of such Restricted Payment: (1a) a no Default shall have occurred and be continuing or shall occur as a consequence thereof; (2b) there shall be not more than $20,000,000 in aggregate principal amount of Loans outstanding on any date during the Issuer cannot incur $1.00 period of additional Indebtedness pursuant to 90 consecutive calendar days after the Coverage Ratio Exception; ordate such Restricted Payment is made; (3c) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after May 12, 2009 (other than Restricted Payments the Closing Date and all Investments made pursuant to clauses (2) through (7Section 5.18(a)(xii), (8) (with respect to non-cash dividends only), (10), (11) and (12) of Section 4.08(b), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication): (i) 50% of the Borrower's Consolidated Net Income for the period (taken as one accounting period) commencing on from the first (1st) day beginning of the first full fiscal quarter Fiscal Quarter commencing after May 12, 2009 the Closing Date to and including the last day end of the fiscal quarter Borrower's most recently ended immediately prior to the date of such calculation Fiscal Quarter for which consolidated financial statements are available at the time of such Restricted Payment (or, if such aggregate Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus ) plus (ii) 100% of the aggregate net proceeds, including cash 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 proceeds from the issuance and sale of Qualified Equity Interests after May 12, 2009, (other than any such proceeds which are used to redeem Notes in accordance with Section 6 a Subsidiary of the NotesBorrower or a Panini Entity) on or after the Closing Date of the Borrower's Capital Stock that is not Disqualified Capital Stock, provided that plus (iii) the Issuer delivers cash proceeds received after the Closing Date from the exercise of warrants to purchase the Trustee:Borrower's Capital Stock which were outstanding on the Closing Date.

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2) through (7), (8) (with respect to non-cash dividends only3), (104), (115), (6), (7) and or (12) 8) of Section 4.08(b4.11(b)), exceeds the sum (the ““ Restricted Payments Basket”) of (without duplication): (ia) 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 commencing after May 12January 1, 2009 2004 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 (iib) 100% of the aggregate net proceeds, including cash proceeds received by the Issuer and 100% of the Fair Market Value at the time of the equity of a Person or receipt of assets used in or constituting a line of businessother than cash, in each case which becomes or becomes owned by a Restricted Subsidiaryif any, received by the Issuer, either (x) as contributions to the common equity of the Issuer after June 9, 2008 or (y) from the issuance and sale of Qualified Equity Interests after May 12June 9, 20092008, other than (A) any such proceeds which are used to redeem Notes in accordance with Section 6 6(a) of the Notes, (B) any such proceeds or assets received from a Subsidiary of the Issuer or (C) any Old Notes received in the Note Contribution, plus (c) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary subsequent to June 9, 2008 is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer or in connection with the Note Contribution) into Qualified Equity Interests (or a capital contribution in respect of 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 June 9, 2008, 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, 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 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; (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, or a capital contribution in respect of, Qualified Equity Interests; (3) the redemption of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, or a capital contribution in respect 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, 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 that the Issuer delivers 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 Trustee: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 (4), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (4); (5) payments to Parent permitted pursuant to clauses (3) or (4) of Section 4.14(b); (6) repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof; (7) 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 consummated; or (8) additional Restricted Payments of $20.0 million; provided that (a) in the case of any Restricted Payment pursuant to clause (3)(c) above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests pursuant to clause (2), (3) or (4)(B) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer will shall not, and will 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2) through ), (3), (4), (5), (7), (8) (with respect to non-cash dividends only9), (10), (11) and or, at any time prior to December 31,2004, clause (126) of the second paragraph of this Section 4.08(b4.07), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (ia) 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 commencing after May 12, 2009 the Issue Date 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 publicly available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (iib) 100% of the aggregate net proceeds, including cash 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, 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 May 12the Issue Date, 2009, plus (c) the aggregate amount by which Indebtedness (other than any such proceeds which are used Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary subsequent to redeem Notes in accordance with Section 6 the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the NotesIssuer) into Qualified Equity Interests (less the amount of any cash, provided that or the fair value of assets, distributed by the Issuer delivers 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 Trustee:extent not included in the computation of Consolidated Net

Limitations on Restricted Payments. (a) The Issuer Company will not, and 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 May 12, 2009 the Issue Date (other than Restricted Payments made pursuant to clauses clause (2) through (7), (8) (with respect to non-cash dividends only3), (10), 4) or (11) and (125) of Section 4.08(b4.11(b)), exceeds the sum (the “"Restricted Payments Basket”") of (without duplication): (iA) 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 -53- commencing after May 12, 2009 the Issue Date 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 (iiB) 100% of the aggregate net proceeds, including cash 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, proceeds received by the Issuer Company either (x) as contributions to the common equity of the Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after May 12, 2009the Issue Date, other than any such proceeds which are used to redeem Notes in accordance with Section 6 paragraph 6(b) of the Notes, plus (C) the aggregate amount by which Indebtedness incurred by the Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the 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) 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 Company's proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Company's Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions will not prohibit: (1) the payment by the 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; (2) the redemption of any Equity Interests of the 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) 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 Equity Interests of the Company held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the Issuer delivers aggregate cash consideration paid for all such redemptions shall not exceed $1.0 million during any calendar year; or (5) repurchases of Equity Interests deemed to occur upon the Trustee:exercise of stock options if the Equity Interests represents a portion of the exercise price thereof; provided that (a) in the case of any Restricted Payment pursuant to clause (3) above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests pursuant to clause (2) or (3) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) The Issuer will not, and 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 May 12August 11, 2009 (other than Restricted Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash dividends only), (10), (11) and (1211) of Section 4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (i) 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 commencing after May 12August 11, 2009 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 (ii) 100% of the aggregate net proceeds, including cash 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 from the issuance and sale of Qualified Equity Interests after May 12August 11, 2009, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes, provided that the Issuer delivers to the Trustee: