Common use of Dividends and Other Restricted Payments Clause in Contracts

Dividends and Other Restricted Payments. Parent shall not declare, pay or make any dividend or distribution on any shares of the common stock or preferred stock of such Person (other than dividends or distributions payable in its stock, or split-ups or reclassifications of its stock) or apply any of its funds, property or assets to the purchase, redemption or other retirement of any common or preferred stock, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare and pay cash dividends on shares of its common stock in an aggregate amount not to exceed $465,000 in any fiscal quarter (on a non-cumulative basis), so long as (i) no Default or Event of Default has occurred and is continuing or would result after giving effect to such dividends, (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date (A) the number "465,000" in this Section 7.6 shall be changed to "425,000", (B) the number "$5,000,000" in this Section 7.6 shall be changed to "$6,000,000 (to be reduced, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 of the Loan Agreement is amended to delete the date "January 30, 2007 in the 4th line thereof and replace it with the date "April 1, 2009". (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall The Borrower will not, and will not declare, pay or make any dividend or distribution on any shares of the common stock or preferred stock of such Person (other than dividends or distributions payable in its stock, or split-ups or reclassifications of its stock) or apply permit any of its fundsSubsidiaries to, property declare or assets to the purchase, redemption or other retirement of any common or preferred stockmake, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (a) the Borrower or any of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent its Subsidiaries may declare and pay cash dividends on or make Capital Distributions that are payable solely in additional shares of its common stock in an aggregate amount not (or warrants, options or other rights to exceed $465,000 in acquire additional shares of its common stock); (b) any fiscal quarter Subsidiary of the Borrower may declare and pay or make Capital Distributions to the Borrower or any Subsidiary Guarantor; (on a non-cumulative basis)c) the Borrower may declare any pay or make Capital Distributions, so long as provided that (i) no Default or Event of Default has shall have occurred and is be continuing or would result after giving effect to such dividendstherefrom, (ii) Borrowers then have Undrawn Availability the Borrower is in excess of $2,000,000 and also have Thirty Day Undrawn Availability compliance with the financial covenants set forth in excess of $2,000,000 Section 9.7 hereof after giving pro forma effect to each such dividendsCapital Distribution, and (iii) Parent the aggregate amount of all Capital Distributions made by the Borrower pursuant to this clause shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date not exceed (A) during any fiscal year of the number "465,000" Borrower an amount equal to 50% of the Consolidated Net Income for the most recently completed fiscal year of the Borrower, to the extent positive and (B) $10,000,000 in this the aggregate on and after the Closing Date; and (d) The Borrower may make Share Repurchases, provided that (A) prior to or contemporaneously with any such Share Repurchase, the Borrower shall provide written evidence to the Administrative Agent and the Lenders of compliance on a pro forma basis with the covenants contained in Section 7.6 shall be changed to "425,000"9.7, (B) the number "$5,000,000" in this Section 7.6 no Default or Event of Default shall have occurred and be changed to "$6,000,000 continuing or shall result therefrom and (to be reduced, as of the earlier of (xC) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed aggregate amount of all such Share Repurchases made on or after the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, Closing Date shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 of the Loan Agreement is amended to delete the date "January 30, 2007 in the 4th line thereof and replace it with the date "April 1, 2009"7,040.400. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall not declareMake, pay pay, declare or make authorize any dividend dividend, payment or other distribution in respect of any class of its Capital Stock or any dividend, payment or distribution on in connection with the redemption, purchase, retirement or other acquisition, directly or indirectly, of any shares of its Capital Stock other than such dividends, payments or other distributions (i) to the common stock or preferred stock extent payable solely in shares of such Person Capital Stock (other than dividends or distributions payable in its stockDisqualified Stock) of the Company, or split-ups or reclassifications of its stock(ii) or apply any of its funds, property or assets to the purchaserepurchase, redemption or other acquisition or retirement for value of any common or preferred stock, or Capital Stock of the Company held by any options to purchase or acquire any such shares employee of common or preferred stock the Company upon termination of employment of such Personemployee, except Parent provided that the aggregate price paid for such repurchased, redeemed, acquired or retired Capital Stock shall not exceed $1,000,000 in any consecutive twelve month period, no Event of Default or Unmatured Event shall have occurred and be continuing immediately after such transaction and the price paid for such Capital Stock shall be made in accordance with the existing agreements relating thereto, and (iii) the following described dividends: For so long as the Company is an S-Corporation or substantially similar pass-through entity for Federal income tax purposes, the Company may declare and pay make cash dividends on shares of distributions to its common stock shareholders, during each Quarterly Payment Period, in an aggregate amount not to exceed $465,000 the Permitted Quarterly Tax Distribution in respect of the related Estimation Period. If any fiscal quarter (on portion of a nonPermitted Quarterly Tax Distribution is not distributed during such Quarterly Payment Period, the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be increased by such undistributed portion. Within 10 days following the Company's filing of Internal Revenue Service Form 1120S for the immediately preceding taxable year, the Tax Amounts CPA shall file with the Agent a written statement indicating in reasonable detail the calculation of the True-cumulative basis)Up Amount. In the case of a True-up Amount due to the stockholders, so long as (i) no the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be increased by such True-up Amount. In the case of a True-up Amount due to the Company, the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be reduced by such True-up Amount and the excess, if any, of the True-up Amount over such Permitted Quarterly Tax Distribution shall be applied to reduce the immediately following Permitted Quarterly Tax Distributions until such True-up Amount is entirely offset. The Company will not issue any preferred stock or Disqualified Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make any payment or other transfer of any kind in respect of any Non-Competition Agreement if any Default or Event of Default has shall have occurred and is be continuing or would result after giving effect to such dividends, (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 occur as a consequence thereof and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005will not amend or modify, or each quarter thereaftermake any optional payment on, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date (A) the number "465,000" in this Section 7.6 shall be changed to "425,000", (B) the number "$5,000,000" in this Section 7.6 shall be changed to "$6,000,000 (to be reduced, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 of the Loan Agreement is amended to delete the date "January 30, 2007 in the 4th line thereof and replace it with the date "April 1, 2009"Non-Competition Agreement. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall The Company will not, and will not declarepermit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (a) the Company may declare and pay or make dividends or other distributions with respect to any dividend or distribution on any class of its capital stock which are payable solely in additional shares of the its common stock (or preferred stock warrants, options or other rights to acquire additional shares of such Person its common stock); (other than b) any Subsidiary of the Company may declare and pay or make dividends or distributions payable ratably with respect to its capital stock; (c) the Company may make Restricted Payments pursuant to and in accordance with its stockexisting stock option, or split-ups or reclassifications stock purchase and other benefit plans of its stock) or apply any of its fundsgeneral application to management, property or assets to the purchase, redemption directors or other retirement employees of the Company and its Subsidiaries; (d) the Company may, during any common or preferred stockfiscal year, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare and pay cash dividends on its common stock, if immediately prior to and immediately after giving effect to such action (A) no Default under section 10.1(a) or Event of Default shall have occurred and be continuing, (B) the Company shall be in compliance with sections 9.7, 9.8, 9.9 and 9.10, after giving pro forma effect to such action, and (C) the aggregate amount so expended during such fiscal year is not in excess of the greater of (x) $15,000,000, or (y) 25% of the Company's Consolidated Net Income (if positive) for the fiscal year to the end of the month preceding the date of payment; (e) the Company may, during any fiscal year, repurchase shares of its common stock in an aggregate amount not open market transactions or privately negotiated transactions, for cash consideration and for use in satisfying current and reasonably projected stock option and similar exercises by employees and/or directors under stock option, stock grant, stock purchase and similar plans, if immediately prior to exceed $465,000 in any fiscal quarter (on a non-cumulative basis), so long as (i) no Default or Event of Default has occurred and is continuing or would result immediately after giving effect to such dividends, (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date action (A) the number "465,000" in this Section 7.6 no Default under section 10.1(a) or Event of Default shall have occurred and be changed to "425,000"continuing, and (B) the number "$5,000,000" in this Section 7.6 Borrowers shall be changed in compliance with sections 9.8, 9.9 and 9.10, after giving pro forma effect to "$6,000,000 (to be reduced, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 of the Loan Agreement is amended to delete the date "January 30, 2007 in the 4th line thereof and replace it with the date "April 1, 2009"such action. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall not declareMake, pay pay, declare or make authorize any dividend dividend, payment or other distribution in respect of any class of its capital stock or any dividend, payment or distribution on in connection with the redemption, purchase, retirement or other acquisition, directly or indirectly, of any shares of its capital stock other than such dividends, payments or other distributions to the common stock or preferred extent payable solely in shares of the capital stock of such Person (other than dividends or distributions payable in its stockthe Company, or split-ups or reclassifications of its stock) or apply any of its fundsprovided, property or assets to the purchasehowever, redemption or other retirement of any common or preferred stockthat, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare and pay cash dividends on shares of its common stock in an aggregate amount not to exceed $465,000 in any fiscal quarter (on a non-cumulative basis), so long as (i) if no Default or Event of Default has shall exist or shall have occurred and be continuing, the Company may (i) repurchase 100,000 shares of the Company's common stock as approved by the Board of Directors of the Company at the regular meeting of the Board of Directors on February 8, 2000, provided that such repurchase is continuing or would result after giving effect to such dividendscompleted by August 31, 2000 and (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such make, pay, declare or authorize dividends, payments and other such distributions made after January 1, 2000 which, in the aggregate (iiiexcluding the repurchase allowed under clause (i) Parent above), do not exceed the sum of (A) $1,000,000 at any time plus (B) fifty percent (50%) of the Cumulative Net Income of the Company and its Subsidiaries commencing January 1, 2000. For purposes of this paragraph 10(h), "capital stock" shall have achieved a positive consolidated EBITDA include capital stock and any securities exchangeable for or convertible into capital stock and any warrants, rights or other options to purchase or otherwise acquire capital stock or such securities. 1.9 The portion of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding first sentence the date any such dividend is to be paidlast paragraph of Section 10 of the Letter Agreement, (iv) as to any dividend declared with respect to from the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA words "For purposes of at least $9,300,000 for " through the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, words "provided, however, that following the Sub Debt Closing Date (A) the number "465,000that" in this Section 7.6 shall be changed amended and restated as follows: For purposes of this paragraph 10 and the determination of the Applicable Margin from time to "425,000"time, (B) the number "$5,000,000" in this Section 7.6 financial covenants and ratios, and the related defined terms, shall be changed determined in accordance with generally accepted accounting principles; provided, however, that 1.10 The following subsection (k) is added to "$6,000,000 (to be reduced, as the end of Section 11 of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. "Letter Agreement as follows: (i) Section 13.1 Each of the Loan Agreement Company and the Guarantors has all requisite corporate power to execute and deliver the Security Documents to which it is amended a party and to delete the date "January 30, 2007 engage in the 4th line thereof transactions contemplated by this Agreement; (ii) the execution, delivery and replace performance by each of the Company and the Guarantors of the Security Documents to which it is a party have been duly authorized by all necessary corporate action and are not in contravention of any law, rule or regulation, or any judgment, decree, writ, injunction, order or award of any arbitrator, court or governmental authority, or of the terms of the Company's or any Guarantor's charter or by-laws, or of any contract or undertaking to which the Company or any Guarantor is a party or by which the Company or any Guarantor or any of its property may be bound or affected and will not result in the imposition of any Lien on any of its property or of any of its Subsidiaries except for Permitted Liens; (iii) the Security Documents to which each of the Company and the Guarantors is a party when delivered hereunder will be, legal, valid and binding obligations of the Company and each such Guarantor enforceable against the Company and each such Guarantor in accordance with their respective terms; and (iv) no consent, approval or authorization of or declaration, registration or filing with any governmental authority or any nongovernmental person or entity, including without limitation any creditor, lessor or stockholder of the Company, any Guarantor or any of their respective Subsidiaries, is required on the part of the Company or any Guarantor in connection with the date "April 1execution, 2009"delivery and performance of the Security Documents or the transactions contemplated hereby or as a condition to the legality, validity or enforceability of any of the Security Documents. 1.11 The following subsections (jk), (1) and (m) are added to the end of Section 15.2(b)(ii) 13 of the Loan Letter Agreement is deleted in its entirety and is replaced by the followingas follows:

Dividends and Other Restricted Payments. Parent shall not Directly or indirectly, declare, pay order, pay, make or make set apart any dividend or distribution sum for any Restricted Payment, except: (a) dividends and distributions on any shares of the common stock or preferred stock of such Person (other than dividends or distributions payable in its stock, or split-ups or reclassifications of its stock) or apply any of its funds, property or assets Preferred Stock to the purchaseextent permitted under Section 6.16; (b) if no Event of Default or Default exists or would be caused thereby, redemption or other retirement of any common or preferred stock, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare dividends and pay cash dividends on shares of its common stock distributions in an aggregate amount not to exceed $465,000 1,000,000 made after the Original Effective Date; provided, however, no such Restricted Payment may be made during the period commencing on the Effective Date and ending on the Covenant Reversion Date. (c) dividends and distributions which in any fiscal quarter aggregate amount do not exceed 25% of the Net Income accrued during Fiscal Quarters ending after the Effective Date for which the Leverage Ratio was not greater than 3.00 to 1; provided, however, that both before and after the making or declaration of such dividend, payment or other distribution (i) the Leverage Ratio for the twelve-month period ending on the last day of the most recently ended Fiscal Quarter for which Financial Statements have been delivered pursuant to Section 5.4 is not greater than 3.00 to 1 on a non-cumulative basis), so long as Pro Forma Basis and (iii) no Default or Event of Default has shall have occurred and is continuing or be caused thereby; (d) if no Event of Default or Default exists or would result after giving effect be caused thereby, payments in an aggregate amount not to such dividends, (ii) Borrowers then have Undrawn Availability exceed $2,500,000 in excess of $2,000,000 any Fiscal Year and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 in the aggregate, for all employees made after the Original Effective Date for the two (2) consecutive fiscal quarter period preceding purpose of redeeming the date Stock of the Company owned by any employees of the Company, other than a Permitted Holder, upon the termination of the employment by the Company or any of its Restricted Subsidiaries of such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, employee; provided, however, that following (i) any amounts used to redeem such Stock under this clause (d) shall first reduce the Sub Debt Closing amount allowed or accumulated under Section 6.7(b) until the amount allowed thereunder is exhausted and then shall reduce the amount allowed under Section 6.7(c), (ii) the amounts payable for the redemption of such Stock will not be paid any sooner or in any greater amount than contractually required and (iii) if the Company is required to make any such payment during the period beginning on the Effective Date and ending on the Covenant Reversion Date, the Company shall (A) the number "465,000" in this Section 7.6 shall be changed to "425,000"not pay any amount up-front, (B) elect to pay such amounts in the maximum number "$5,000,000" of installments permitted by the governing documents in this Section 7.6 shall be changed to "$6,000,000 (to be reduced, effect as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," Effective Date and (C) clauses (iv) pay only those amounts that the Company is required to pay pursuant to the terms of the governing agreement in effect on the date hereof and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. "as disclosed to the Administrative Agent; and (ie) Section 13.1 prepayment of the Loan Agreement is amended Subordinated Debt in an amount not to delete the date "January 30, 2007 exceed $250,000,000 in the 4th line thereof and replace it connection with the date "April 1refinancing of the Senior Subordinated Notes, 2009".as long as the incurrence of such Subordinated Debt is permitted under Section 6.2(e) or (f); and (jf) any repayment of Indebtedness permitted pursuant to Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:6.2(c).

Dividends and Other Restricted Payments. Parent shall The Borrower will not, and will not declarepermit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, EXCEPT: (a) the Borrower may declare and pay or make dividends or other distributions with respect to any dividend or distribution on any class of its capital stock which are payable solely in additional shares of the its common stock (or preferred stock warrants, options or other rights to acquire additional shares of such Person its common stock); (other than b) any Subsidiary of the Borrower may declare and pay or make dividends or distributions payable ratably with respect to its capital stock; (c) the Borrower may make Restricted Payments pursuant to and in accordance with its stockexisting stock option, or split-ups or reclassifications stock purchase and other benefit plans of its stock) or apply any of its fundsgeneral application to management, property or assets to the purchase, redemption directors or other retirement employees of the Borrower and its Subsidiaries; (d) the Borrower may, during any common or preferred stockfiscal year, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare and pay cash dividends on its common stock, if immediately prior to and immediately after giving effect to such action (A) no Default under section 10.1(a) or Event of Default shall have occurred and be continuing, (B) the Borrower shall be in compliance with sections 9.7, 9.8 and 9.9, after giving pro forma effect to such action, and (C) the aggregate amount so expended during such fiscal year is not in excess of the greater of (x) $15,000,000, or (y) 25% of the Borrower's year-to-date Consolidated Net Income (if positive) for the portion of the current fiscal year ending on the last day of the month preceding the date of payment; (e) the Borrower may, during any fiscal year, repurchase shares of its common stock in an aggregate amount not open market transactions or privately negotiated transactions, for cash consideration and for use in satisfying current and reasonably projected stock option and similar exercises by employees and/or directors under stock option, stock grant, stock purchase and similar plans, if immediately prior to exceed $465,000 in any fiscal quarter (on a non-cumulative basis), so long as (i) no Default or Event of Default has occurred and is continuing or would result immediately after giving effect to such dividends, (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date action (A) the number "465,000" in this Section 7.6 no Default under section 10.1(a) or Event of Default shall have occurred and be changed to "425,000"continuing, and (B) the number "$5,000,000" in this Section 7.6 Borrower shall be changed in compliance with sections 9.8 and 9.9, after giving pro forma effect to "$6,000,000 (to be reduced, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 of the Loan Agreement is amended to delete the date "January 30, 2007 in the 4th line thereof and replace it with the date "April 1, 2009"such action. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall The Borrower will not, and will not declarepermit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, EXCEPT: (a) the Borrower may declare and pay or make dividends or other distributions with respect to any dividend or distribution on any class of its capital stock which are payable solely in additional shares of the its common stock (or preferred stock warrants, options or other rights to acquire additional shares of such Person its common stock); (other than b) any Subsidiary of the Borrower may declare and pay or make dividends or distributions payable ratably with respect to its capital stock; (c) the Borrower may make Restricted Payments pursuant to and in accordance with its stockexisting stock option, or split-ups or reclassifications stock purchase and other benefit plans of its stock) or apply any of its fundsgeneral application to management, property or assets to the purchase, redemption directors or other retirement employees of the Borrower and its Subsidiaries; (d) the Borrower may, during any common or preferred stockfiscal year, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare and pay cash dividends on its common stock, if immediately prior to and immediately after giving effect to such action (A) no Default under section 10.1(a) or Event of Default shall have occurred and be continuing, (B) the Borrower shall be in compliance with sections 9.8 and 9.9, after giving pro forma effect to such action, and (C) the aggregate amount so expended during such fiscal year is not in excess of the greater of (x) $12,000,000, or (y) 25% of the Borrower's Consolidated Net Income (if positive) for the fiscal year to the end of the month preceding the date of payment; and (e) the Borrower may, during any fiscal year, repurchase shares of its common stock in an aggregate amount not open market transactions or privately negotiated transactions, for cash consideration and for use in satisfying current and reasonably projected stock option and similar exercises by employees and/or directors under stock option, stock grant, stock purchase and similar plans, if immediately prior to exceed $465,000 in any fiscal quarter (on a non-cumulative basis), so long as (i) no Default or Event of Default has occurred and is continuing or would result immediately after giving effect to such dividends, (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date action (A) the number "465,000" in this Section 7.6 no Default under section 10.1(a) or Event of Default shall have occurred and be changed to "425,000"continuing, (B) the number "$5,000,000" in this Section 7.6 Borrower shall be changed in compliance with sections 9.8 and 9.9, after giving pro forma effect to "$6,000,000 (to be reducedsuch action, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 the case of the Loan Agreement fiscal year ended December 31, 2000 only, the aggregate amount so expended during such fiscal year is amended to delete the date "January 30, 2007 not in the 4th line thereof and replace it with the date "April 1, 2009"excess of $20,000,000. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall The Borrower will not, and will not declare, pay or make any dividend or distribution on any shares of the common stock or preferred stock of such Person (other than dividends or distributions payable in its stock, or split-ups or reclassifications of its stock) or apply permit any of its fundsSubsidiaries to, property declare or assets to the purchase, redemption or other retirement of any common or preferred stockmake, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (a) the Borrower or any of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent its Subsidiaries may declare and pay cash dividends on or make Capital Distributions that are payable solely in additional shares of its common stock in an aggregate amount not (or warrants, options or other rights to exceed $465,000 in acquire additional shares of its common stock); (b) any fiscal quarter Subsidiary may declare and pay or make Capital Distributions to the Borrower or any Subsidiary Guarantor; (on a non-cumulative basis)c) the Borrower may declare any pay or make Capital Distributions, so long as provided that (i) no Default or Event of Default has shall have occurred and is be continuing or would result after giving effect to such dividendstherefrom, (ii) Borrowers then have Undrawn Availability the Borrower is in compliance with the financial covenants set forth in Section 8.7 hereof after giving pro forma effect to each such Capital Distribution, and (iii) the aggregate amount of all Capital Distributions made by the Borrower pursuant to this clause shall not exceed (A) during any fiscal year of the Borrower an amount equal to 50% of the Consolidated Net Income for the most recently completed fiscal year of the Borrower, to the extent positive and (B) $25,000,000 in the aggregate on and after the Closing Date; (d) the Borrower may make Share Repurchases, provided that (i) prior to or contemporaneously with any such Share Repurchase in excess of $2,000,000 3,000,000, the Borrower shall provide written evidence to the Administrative Agent and also the Lenders of compliance on a pro forma basis with the covenants contained in Section 8.7, (ii) no Default or Event of Default shall have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, occurred and be continuing or shall result therefrom and (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date (A) the number "465,000" in this Section 7.6 shall be changed to "425,000", (B) the number "$5,000,000" in this Section 7.6 shall be changed to "$6,000,000 (to be reduced, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed aggregate amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, all such Share Repurchases made in any fiscal year shall not exceed $500,00012,000,000 (the “Annual Share Purchase Limit”) provided that in the event actual Share Repurchases for any fiscal year are less than such amount, 100% of the difference may be carried over to the next fiscal year (the “Share Purchase Carryover”)," and (C) clauses (iv) and (v) above , but not any subsequent fiscal year, provided, further that in this Section 7.6 any given year, the Annual Share Purchase Limit shall be deleted deemed used before using the Share Purchase Carryover; and (e) the Borrower and be its Subsidiaries may make prepayments of no further force and effect. " the Prepaid Subordinated Indebtedness provided that at the time any such prepayment is made, (i) Section 13.1 such prepayment, when added together with all other prepayments of Prepaid Subordinated Indebtedness, will not exceed the Loan Agreement is amended to delete the date "January 30Permitted Prepayment Amount, 2007 in the 4th line thereof and replace it with the date "April 1, 2009"(ii) no Default or Event of Default exists or will occur immediately thereafter. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following:

Dividends and Other Restricted Payments. Parent shall The Borrower will not, and will not declarepermit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, EXCEPT: (a) the Borrower may declare and pay or make dividends or other distributions with respect to any dividend or distribution on any class of its capital stock which are payable solely in additional shares of the its common stock (or preferred stock warrants, options or other rights to acquire additional shares of such Person its common stock); (other than b) any Subsidiary of the Borrower may declare and pay or make dividends or distributions payable ratably with respect to its capital stock; (c) the Borrower may make Restricted Payments pursuant to and in accordance with its stockexisting stock option, or split-ups or reclassifications stock purchase and other benefit plans of its stock) or apply any of its fundsgeneral application to management, property or assets to the purchase, redemption directors or other retirement employees of the Borrower and its Subsidiaries; (d) the Borrower may, during any common or preferred stockfiscal year, or of any options to purchase or acquire any such shares of common or preferred stock of such Person, except Parent may declare and pay cash dividends on its common stock, if immediately prior to and immediately after giving effect to such action (A) no Default under section 10.1(a) or Event of Default shall have occurred and be continuing, (B) the Borrower shall be in compliance with sections 9.7 and 9.8, after giving pro forma effect to such action, and (C) the aggregate amount so expended during such fiscal year is not in excess of the greater of (x) $15,000,000, or (y) 25% of the Borrower's year-to-date Consolidated Net Income (if positive) for the portion of the current fiscal year ending on the last day of the month preceding the date of payment; (e) the Borrower may, during any fiscal year, repurchase shares of its common stock in an aggregate amount not open market transactions or privately negotiated transactions, for cash consideration and for use in satisfying current and reasonably projected stock option and similar exercises by employees and/or directors under stock option, stock grant, stock purchase and similar plans, if immediately prior to exceed $465,000 in any fiscal quarter (on a non-cumulative basis), so long as (i) no Default or Event of Default has occurred and is continuing or would result immediately after giving effect to such dividends, (ii) Borrowers then have Undrawn Availability in excess of $2,000,000 and also have Thirty Day Undrawn Availability in excess of $2,000,000 after giving effect to such dividends, (iii) Parent shall have achieved a positive consolidated EBITDA of at least $5,000,000 for the two (2) consecutive fiscal quarter period preceding the date any such dividend is to be paid, (iv) as to any dividend declared with respect to the quarter ending September 30, 2005, Parent shall have achieved a positive consolidated EBITDA of at least $9,300,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, and (v) as to any dividend declared with respect to the quarter ending December 31, 2005, or each quarter thereafter, Parent shall have achieved a positive consolidated EBITDA of at least $10,000,000 for the four (4) consecutive fiscal quarter period preceding the date any such dividend is declared, provided, however, that following the Sub Debt Closing Date action (A) the number "465,000" in this Section 7.6 no Default under section 10.1(a) or Event of Default shall have occurred and be changed to "425,000"continuing, and (B) the number "$5,000,000" in this Section 7.6 Borrower shall be changed in compliance with sections 9.8 and 9.9, after giving pro forma effect to "$6,000,000 (to be reduced, as of the earlier of (x) the final drawdown date under the Approved Sub Debt or (y) the date of Collateral Agent's receipt of written notice from Borrowers that no further drawdown of the Approved Sub Debt will occur, by $100,000 for each $1,000,000 by which the actual total borrowed amount of the Approved Sub Debt is less than $15,000,000, provided that the total reduction under this parenthetical, if applicable, shall not exceed $500,000)," and (C) clauses (iv) and (v) above in this Section 7.6 shall be deleted and be of no further force and effect. " (i) Section 13.1 of the Loan Agreement is amended to delete the date "January 30, 2007 in the 4th line thereof and replace it with the date "April 1, 2009"such action. (j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its entirety and is replaced by the following: