connection with any
Related Interest Rate Agreement; and
(G)
Indebtedness under purchase money security
agreements and Capital Leases not to exceed $40,000,000 in the aggregate
principal at any one time.
3.2.
LIENS AND RELATED MATTERS..
BORROWER WILL NOT
AND WILL NOT PERMIT ITS SUBSIDIARIES DIRECTLY OR INDIRECTLY TO CREATE, INCUR,
ASSUME OR PERMIT TO EXIST ANY LIEN ON OR WITH RESPECT TO ANY PROPERTY OR ASSET
(INCLUDING ANY DOCUMENT OR INSTRUMENT WITH RESPECT TO GOODS OR ACCOUNTS
RECEIVABLE) OF BORROWER OR ITS SUBSIDIARIES, WHETHER NOW OWNED OR HEREAFTER
ACQUIRED, OR ANY INCOME OR PROFITS THEREFROM, EXCEPT PERMITTED ENCUMBRANCES.
3.3.
INVESTMENTS.
BORROWER WILL NOT MAKE OR OWN
AND WILL NOT PERMIT ITS SUBSIDIARIES TO MAKE OR OWN ANY INVESTMENT IN ANY PERSON
THAT IS PROHIBITED BY ITS INVESTMENT POLICY AS THEN IN EFFECT, EXCEPT EQUITIES
IN ADMINISTRATIVE AGENT, AS SET FORTH IN SUBSECTION 2.7, PERMITTED ACQUISITIONS
AND INVESTMENTS ACQUIRED IN CONNECTION WITH PERMITTED ACQUISITIONS.
3.4.
RESTRICTED JUNIOR PAYMENTS.
BORROWER WILL NOT
DIRECTLY OR INDIRECTLY DECLARE, ORDER, PAY, MAKE OR SET APART ANY SUM FOR ANY
RESTRICTED JUNIOR PAYMENT; PROVIDED, HOWEVER, THAT SO LONG AS NO DEFAULT OR
EVENT OF DEFAULT EXISTS BEFORE OR WILL RESULT IN THE SUCCEEDING 12 MONTHS AFTER
SUCH DISTRIBUTIONS AND REPURCHASES, BASED UPON BORROWER'S BUDGET DELIVERED TO
ADMINISTRATIVE AGENT PURSUANT TO SUBSECTION 4.4(D), BORROWER MAY (I) DECLARE OR
PAY LAWFUL DISTRIBUTIONS TO ITS SHAREHOLDERS AND (II) REPURCHASE ITS ISSUED AND
OUTSTANDING STOCK SO LONG AS THE AGGREGATE AMOUNT OF SUCH DISTRIBUTIONS AND
REPURCHASES DOES NOT EXCEED (A) DURING THE FISCAL YEAR ENDING DECEMBER 31, 2008,
$25,000,000 AND (B) DURING EACH FISCAL YEAR THEREAFTER, THE HIGHER OF
$25,000,000 OR 100% OF THE NET INCOME OF THE IMMEDIATELY PRECEDING FISCAL YEAR;
PROVIDED, FURTHER, HOWEVER, THAT BORROWER MAY SATISFY ON A NON-CASH BASIS THE
EXERCISE OF ANY STOCK OPTION OR SIMILAR AWARD UNDER A STOCK-BASED COMPENSATION
PLAN.
3.5.
RESTRICTION ON FUNDAMENTAL CHANGES.
BORROWER
WILL NOT AND WILL NOT PERMIT ITS SUBSIDIARIES DIRECTLY OR INDIRECTLY TO:
(I) UNLESS AND ONLY TO THE EXTENT REQUIRED BY LAW, AMEND, MODIFY OR WAIVE ANY
TERM OR PROVISION OF ITS ARTICLES OF ORGANIZATION, PARTNERSHIP AGREEMENT,
OPERATING AGREEMENT, MANAGEMENT AGREEMENTS, ARTICLES OF INCORPORATION OR
CERTIFICATES OF
25
DESIGNATIONS PERTAINING TO PREFERRED STOCK OR BY-LAWS WITHOUT THE CONSENT OF
ADMINISTRATIVE AGENT (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD), OTHER
THAN AN AMENDMENT, MODIFICATION OR WAIVER THAT IS SOLELY MINISTERIAL OR
ADMINISTRATIVE IN NATURE OR THE REINCORPORATION OF BORROWER IN THE STATE OF
DELAWARE; PROVIDED, HOWEVER, BORROWER SHALL PROMPTLY GIVE ADMINISTRATIVE AGENT
NOTICE OF ANY SUCH AMENDMENT, MODIFICATION OR WAIVER; (II) ENTER INTO ANY
TRANSACTION OF MERGER OR CONSOLIDATION OR ACQUIRE BY PURCHASE OR OTHERWISE ALL
OR ANY SUBSTANTIAL PART OF THE BUSINESS OR ASSETS OF ANY OTHER PERSON, EXCEPT
(EACH OF THE FOLLOWING, A "PERMITTED ACQUISITION") (A) ANY SUBSIDIARY OF
BORROWER MAY BE MERGED WITH OR INTO BORROWER OR ANY WHOLLY OWNED SUBSIDIARY OF
BORROWER PROVIDED THAT BORROWER OR SUCH WHOLLY OWNED SUBSIDIARY OF BORROWER IS
THE SURVIVING ENTITY, AND (B) BORROWER OR ITS SUBSIDIARIES MAY