ESTABLISH
AND MAINTAIN AN ELIGIBLE CAPTIVE INSURANCE SUBSIDIARY.
7.07
TRANSACTIONS WITH AFFILIATES.
ENTER INTO ANY
TRANSACTION OF ANY KIND WITH ANY AFFILIATE OF THE COMPANY, WHETHER OR NOT IN THE
ORDINARY COURSE OF BUSINESS, EXCEPT (A) FOR AGREEMENTS WITH OFFICERS AND
DIRECTORS OF THE COMPANY OR ITS SUBSIDIARIES FOR (X) INDEMNIFICATION OR
PARTICIPATION UNDER THE COMPANY'S EQUITY PLANS OR (Y) LOANS TO OR RETENTION OR
SEVERANCE AGREEMENTS WITH OFFICERS AND DIRECTORS OF THE COMPANY OR ITS
SUBSIDIARIES, EACH AS APPROVED BY THE BOARD OF DIRECTORS OF THE COMPANY; (B) ON
FAIR AND REASONABLE TERMS SUBSTANTIALLY AS FAVORABLE TO THE COMPANY OR SUCH
SUBSIDIARY AS WOULD BE OBTAINABLE BY THE COMPANY OR SUCH SUBSIDIARY AT THE TIME
IN A COMPARABLE ARM'S LENGTH TRANSACTION WITH A PERSON OTHER THAN AN AFFILIATE;
(C) LOANS TO AFFILIATES IN WHICH THE COMPANY OR ITS SUBSIDIARIES HAVE MADE
VENTURE
69
CAPITAL INVESTMENTS, PROVIDED THE MATERIAL TERMS THEREOF ARE FAIR AND REASONABLE
AS COMPARED WITH OTHER, SIMILAR VENTURE CAPITAL INVESTMENTS; OR (D) IN
CONNECTION WITH THE PROVISION OF INSURANCE TO THE BORROWER AND ITS SUBSIDIARIES
BY AN ELIGIBLE CAPTIVE INSURANCE SUBSIDIARY AS CONTEMPLATED BY SECTION 6.07.
7.08
BURDENSOME AGREEMENTS.
ENTER INTO ANY CONTRACTUAL
OBLIGATION (OTHER THAN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT) THAT
(A) LIMITS THE ABILITY (I) OF ANY SUBSIDIARY TO MAKE RESTRICTED PAYMENTS TO THE
COMPANY OR ANY SUBSIDIARY GUARANTOR OR TO OTHERWISE TRANSFER PROPERTY TO THE
COMPANY OR ANY SUBSIDIARY GUARANTOR, (II) OF ANY SUBSIDIARY TO GUARANTEE THE
INDEBTEDNESS OF THE COMPANY OR (III) OF THE COMPANY OR ANY SUBSIDIARY TO CREATE,
INCUR, ASSUME OR SUFFER TO EXIST LIENS ON PROPERTY OF SUCH PERSON; PROVIDED,
HOWEVER, THAT THIS CLAUSE (III) SHALL NOT PROHIBIT ANY NEGATIVE PLEDGE INCURRED
OR PROVIDED IN FAVOR OF ANY HOLDER OF INDEBTEDNESS PERMITTED UNDER
SECTION 7.01(L) SOLELY TO THE EXTENT ANY SUCH NEGATIVE PLEDGE RELATES TO THE
PROPERTY FINANCED BY OR THE SUBJECT OF SUCH INDEBTEDNESS; OR (B) REQUIRES THE
GRANT OF A LIEN TO SECURE AN OBLIGATION OF SUCH PERSON IF A LIEN IS GRANTED TO
SECURE ANOTHER OBLIGATION OF SUCH PERSON.
7.09
USE OF PROCEEDS.
USE THE PROCEEDS OF ANY CREDIT
EXTENSION, WHETHER DIRECTLY OR INDIRECTLY, AND WHETHER IMMEDIATELY, INCIDENTALLY
OR ULTIMATELY, TO PURCHASE OR CARRY MARGIN STOCK (WITHIN THE MEANING OF
REGULATION U OF THE FRB) OR TO EXTEND CREDIT TO OTHERS FOR THE PURPOSE OF
PURCHASING OR CARRYING MARGIN STOCK (OTHER THAN PURCHASES OF MARGIN STOCK ISSUED
BY THE COMPANY AND IMMEDIATELY CANCELLED BY THE COMPANY UPON SUCH PURCHASE) OR
TO REFUND INDEBTEDNESS ORIGINALLY INCURRED FOR SUCH PURPOSE.
7.10
CONSOLIDATED LEVERAGE RATIO.
PERMIT THE
CONSOLIDATED LEVERAGE RATIO AS OF THE END OF ANY FISCAL QUARTER (COMMENCING WITH
THE FISCAL QUARTER ENDED DECEMBER 1, 2006) TO BE GREATER THAN 3.00:1.00.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01
EVENTS OF DEFAULT.
ANY OF THE FOLLOWING SHALL
CONSTITUTE AN EVENT OF DEFAULT:
(A)
NON-PAYMENT.
ANY BORROWER OR ANY OTHER
LOAN PARTY FAILS TO PAY (I) WHEN AND AS REQUIRED TO BE PAID HEREIN, AND IN THE