OWING BY
SUCH OFFICER OR MANAGER);
(D)
BORROWER MAY PAY DIVIDENDS TO HOLDINGS SOLELY FOR THE PAYMENT OF
THE REASONABLE OUT-OF-POCKET EXPENSES OF GTCR AND ITS AFFILIATES TO THE EXTENT
INCURRED SOLELY IN CONNECTION WITH GTCR'S OR SUCH AFFILIATE'S INVESTMENT IN, AND
SOLELY ON BEHALF OF, HOLDINGS AND BORROWER;
(E)
BORROWER MAY MAKE RESTRICTED PAYMENTS TO HOLDINGS TO PERMIT
HOLDINGS TO MAKE DIVIDENDS TO ITS STOCKHOLDERS THAT, WHEN AGGREGATED WITH ALL
RESTRICTED PAYMENTS PREVIOUSLY MADE AFTER THE CLOSING DATE PURSUANT TO THIS
SECTION 3.5(E), DO NOT EXCEED AN AMOUNT EQUAL TO 20% OF THE CUMULATIVE POSITIVE
NET INCOME OF THE BORROWER AND ITS SUBSIDIARIES FOR THE PERIOD FROM JANUARY 1,
2004 THROUGH THE END OF THE MOST RECENT FISCAL QUARTER OR FISCAL YEAR FOR WHICH
BORROWER HAS DELIVERED THE FINANCIAL STATEMENTS REQUIRED PURSUANT TO SECTION
4.5(A) OR (B); PROVIDED, THAT (I) AT THE TIME OF SUCH RESTRICTED PAYMENT THERE
SHALL EXIST NO DEFAULT OR EVENT OF DEFAULT, (II) BOTH BEFORE AND AFTER GIVING
EFFECT TO SUCH RESTRICTED PAYMENT ON A PRO FORMA BASIS, BORROWER IS IN
COMPLIANCE WITH THE COVENANTS SET FORTH IN SECTIONS 4.2, 4.3 AND 4.4 AND HAS A
PRO FORMA LEVERAGE RATIO OF NOT MORE THAN 1.5 TO 1.0, AND (III) AFTER GIVING
EFFECT TO SUCH RESTRICTED PAYMENT, AT LEAST $10,000,000 OF BORROWING
AVAILABILITY WOULD EXIST; AND
(F)
BORROWER MAY MAKE RESTRICTED PAYMENTS TO HOLDINGS AND HOLDINGS
MAY MAKE RESTRICTED PAYMENTS, IN EACH CASE, TO EFFECT THE SHARE REPURCHASE.
3.6
RESTRICTION ON FUNDAMENTAL CHANGES.
HOLDINGS AND BORROWER SHALL
NOT AND SHALL NOT CAUSE OR PERMIT BORROWER'S SUBSIDIARIES TO DIRECTLY OR
INDIRECTLY:
(A) AMEND, MODIFY OR WAIVE ANY TERM OR PROVISION OF ITS
ORGANIZATIONAL DOCUMENTS, INCLUDING ITS ARTICLES OF INCORPORATION, CERTIFICATES
OF DESIGNATIONS PERTAINING TO PREFERRED STOCK, BY-LAWS, PARTNERSHIP AGREEMENT OR
OPERATING AGREEMENT UNLESS REQUIRED BY LAW EXCEPT IF SUCH AMENDMENT,
MODIFICATION, OR WAIVER COULD NOT REASONABLY BE EXPECTED TO HAVE AN ADVERSE
EFFECT ON AGENT OR LENDERS OR AFFECT IN ANY RESPECT ANY LIENS IN FAVOR OF AGENT
AND LENDERS; (B) ENTER INTO ANY TRANSACTION OF MERGER OR CONSOLIDATION EXCEPT
PURSUANT TO A PERMITTED ACQUISITION AND EXCEPT, UPON NOT LESS THAN FIVE (5)
BUSINESS DAYS PRIOR WRITTEN NOTICE TO AGENT, ANY SUBSIDIARY OF BORROWER MAY BE
MERGED WITH OR INTO ANY WHOLLY-OWNED SUBSIDIARY OF BORROWER SO LONG AS IF EITHER
SUCH SUBSIDIARY WAS A GUARANTOR PRIOR TO SUCH MERGER, THE SURVIVING SUBSIDIARY
IS A GUARANTOR; (C) LIQUIDATE, WIND-UP OR DISSOLVE ITSELF (OR SUFFER ANY
LIQUIDATION OR DISSOLUTION); OR (D) ACQUIRE BY PURCHASE OR OTHERWISE ALL OR ANY
SUBSTANTIAL PART OF THE BUSINESS OR ASSETS OF ANY OTHER PERSON EXCEPT PURSUANT
TO A PERMITTED ACQUISITION.
Notwithstanding the foregoing, Borrower may acquire all or substantially all of
the assets or Stock of any Person (the "Target") (in each case, a "Permitted
Acquisition") subject to the satisfaction of each of the following conditions or
waiver thereof by the Requisite Lenders:
(I)
AGENT SHALL RECEIVE AT LEAST 15 BUSINESS DAYS' PRIOR WRITTEN
NOTICE OF SUCH PROPOSED PERMITTED ACQUISITION, WHICH NOTICE SHALL