AND OTHER FEES REQUIRED TO MAINTAIN THE LEGAL
EXISTENCE OF HOLDINGS AND (B) PAYMENTS BY ANY BORROWER TO OR ON BEHALF OF
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 HOLDINGS, IN THE CASE OF CLAUSES (A) AND (B) IN AN AGGREGATE
AMOUNT NOT TO EXCEED $5 MILLION IN ANY FISCAL YEAR;
(D)
PERMITTED TAX DISTRIBUTIONS, SO LONG AS HOLDINGS USES SUCH
DISTRIBUTIONS TO PAY ITS TAXES; AND
(E)
PAYMENTS TO HOLDINGS BY ANY COMPANY TO PERMIT DISTRIBUTIONS BY
HOLDINGS, AND THE SUBSEQUENT USE OF SUCH PAYMENTS BY HOLDINGS TO MAKE
DISTRIBUTIONS, IN AN AGGREGATE AMOUNT NOT EXCEEDING THE SUM OF 50% OF
CONSOLIDATED NET INCOME FOR THE PERIOD FROM OCTOBER 2, 2005 TO THE END OF THE
MOST RECENT FISCAL QUARTER FOR WHICH FINANCIAL STATEMENTS ARE AVAILABLE PLUS
100% OF THE NET CASH PROCEEDS OF EQUITY ISSUANCES AFTER THE ORIGINAL CLOSING
DATE (TO THE EXTENT NOT USED FOR PERMITTED ACQUISITIONS), SO LONG AS AT THE TIME
OF SUCH DISTRIBUTION (I) ADMINISTRATIVE BORROWER HAS GIVEN FIVE (5) BUSINESS
DAYS WRITTEN NOTICE TO ADMINISTRATIVE AGENTS OF ITS INTENTION TO MAKE SUCH
DISTRIBUTION, WHICH NOTICE SHALL SPECIFY THE AMOUNT OF SUCH DISTRIBUTION, (II)
NO TRIGGERING EVENT HAS OCCURRED AND IS CONTINUING AND (III) EXCESS
AVAILABILITY, AFTER GIVING EFFECT TO SUCH DISTRIBUTION, SHALL BE GREATER THAN
$90 MILLION.
SECTION 6.09.
Transactions with Affiliates.
Enter into, directly or
indirectly, any transaction or series of related transactions, whether or not in
the ordinary course of business,
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with any Affiliate of any Company (other than between or among one or both
Borrowers and one or more Subsidiary Guarantors), other than on terms and
conditions at least as favorable to such Company as would reasonably be obtained
by such Company at that time in a comparable arm's-length transaction with a
person other than an Affiliate, except that the following shall be permitted:
(A)
DIVIDENDS PERMITTED BY SECTION 6.08;
(B)
INVESTMENTS PERMITTED BY SECTION 6.04(H) AND SECTION 6.04(I);
(C)
REASONABLE AND CUSTOMARY DIRECTOR, OFFICER AND EMPLOYEE
COMPENSATION (INCLUDING BONUSES) AND OTHER BENEFITS (INCLUDING RETIREMENT,
HEALTH, STOCK OPTION AND OTHER BENEFIT PLANS) AND INDEMNIFICATION ARRANGEMENTS,
WHICH IN THE CASE OF DIRECTOR AND EXECUTIVE OFFICER COMPENSATION IS APPROVED BY
THE BOARD OF DIRECTORS OF BORROWER;
(D)
TRANSACTIONS WITH CUSTOMERS, CLIENTS, SUPPLIERS, JOINT VENTURE
PARTNERS OR PURCHASERS OR SELLERS OF GOODS AND SERVICES, IN EACH CASE IN THE
ORDINARY COURSE OF BUSINESS AND OTHERWISE NOT PROHIBITED BY THE LOAN DOCUMENTS;
(E)
SO LONG AS NO DEFAULT EXISTS, (I) THE PAYMENT OF REGULAR
MANAGEMENT FEES TO SPONSOR IN THE AMOUNTS AND AT THE TIMES SPECIFIED IN THE
MANAGEMENT SERVICES AGREEMENT, AS IN EFFECT ON THE ORIGINAL CLOSING DATE OR AS
THEREAFTER AMENDED OR REPLACED IN ANY MANNER, THAT, TAKEN AS A WHOLE, IS NOT
MORE ADVERSE TO THE INTERESTS OF THE LENDERS IN ANY MATERIAL RESPECT THAN SUCH
AGREEMENT AS IT WAS IN EFFECT ON THE ORIGINAL CLOSING DATE; PROVIDED