FOLLOWING THE
ACQUISITION OR CONSTRUCTION OF SUCH PROPERTY, IN AN AGGREGATE AMOUNT NOT TO
EXCEED $25,000,000; AND (VI) AN ASSET DISPOSITION IF (A) THE AGGREGATE NET
PROCEEDS OF SUCH ASSETS DISPOSED OF UNDER THIS CLAUSE (VII) DOES NOT EXCEED
$100,000,000 FROM AND AFTER THE AMENDMENT DATE, (B) THE CONSIDERATION
26
RECEIVED IS AT LEAST EQUAL TO THE FAIR MARKET VALUE OF SUCH ASSETS, (C) THE SOLE
CONSIDERATION RECEIVED IS CASH OR OTHER ASSETS (OTHER THAN A NOTE OR OTHER
DELAYED PAYMENT TRANSACTION), (D) NO DEFAULT OR EVENT OF DEFAULT THEN EXISTS OR
WOULD RESULT FROM THE ASSET DISPOSITION, (E) AFTER GIVING EFFECT TO THE ASSET
DISPOSITION, BORROWER, ON A COMBINED AND CONSOLIDATED BASIS WITH ITS
SUBSIDIARIES AS SET FORTH IN SECTION 4, ARE IN COMPLIANCE ON A PRO FORMA BASIS
WITH THE COVENANTS SET FORTH IN SECTION 4 RECOMPUTED FOR THE MOST RECENTLY ENDED
FISCAL QUARTER FOR WHICH INFORMATION IS AVAILABLE AND BORROWER IS IN COMPLIANCE
WITH ALL OTHER TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, AND (F) THE
PROCEEDS FROM ANY SALE UNDER THIS CLAUSE (VI) ARE PROMPTLY USED TO REPAY THE
TERM LOAN PURSUANT TO SUBSECTION 1.7(C), PROVIDED THAT IF AT THE TIME OF SUCH
DISPOSITION UNDER THIS CLAUSE (VI) BORROWER'S LEVERAGE RATIO IS LESS THAN OR
EQUAL TO 2.2:1.0 FOR A DISPOSITION OCCURRING ON OR BEFORE DECEMBER 31, 2007 AND
LESS THAN OR EQUAL TO 2.0:1.0 FOR A DISPOSITION OCCURRING ON OR AFTER JANUARY 1,
2008, BORROWER MAY IN LIEU OF REPAYING THE TERM LOAN APPLY SUCH PROCEEDS TO THE
ACQUISITION OF FIXED ASSETS OR OTHER PROPERTY USEFUL AND INTENDED TO BE USED IN
THE OPERATION OF THE BUSINESS OF BORROWER IS SUBSIDIARIES WITHIN 365 DAYS OF THE
DATE OF SALE OF SUCH ASSETS, ANY REMAINING UNAPPLIED PROCEEDS AFTER SUCH 365
DAYS TO BE APPLIED PROMPTLY TO REPAY THE TERM LOAN PURSUANT TO SUBSECTION
1.7(C).
3.7.
TRANSACTIONS WITH AFFILIATES.
BORROWER WILL
NOT AND WILL NOT PERMIT ITS SUBSIDIARIES DIRECTLY OR INDIRECTLY TO ENTER INTO OR
PERMIT TO EXIST ANY TRANSACTION (INCLUDING THE PURCHASE, SALE, LEASE OR EXCHANGE
OF ANY PROPERTY OR THE RENDERING OF ANY SERVICE) WITH ANY AFFILIATE OR WITH ANY
DIRECTOR, OFFICER OR EMPLOYEE OF BORROWER OR ANY AFFILIATE, EXCEPT (I) AS SET
FORTH ON SCHEDULE 3.7; (II) TRANSACTIONS BETWEEN BORROWER OR ANY WHOLLY OWNED
SUBSIDIARIES WITH BORROWER OR ANY WHOLLY OWNED SUBSIDIARIES; (III) PURSUANT TO
THE REASONABLE REQUIREMENTS OF THE BUSINESS OF BORROWER OR SUCH SUBSIDIARY AND
UPON FAIR AND REASONABLE TERMS AND ARE NO LESS FAVORABLE TO BORROWER OR SUCH
SUBSIDIARY THAN WOULD BE OBTAINED IN A COMPARABLE ARM'S LENGTH TRANSACTION WITH
A PERSON THAT IS NOT AN AFFILIATE; OR (IV) PAYMENT OF COMPENSATION TO DIRECTORS,
OFFICERS AND EMPLOYEES IN THE ORDINARY COURSE OF BUSINESS FOR SERVICES ACTUALLY
RENDERED IN THEIR CAPACITIES AS DIRECTORS, OFFICERS AND EMPLOYEES, PROVIDED SUCH
COMPENSATION IS REASONABLE AND COMPARABLE WITH COMPENSATION PAID BY COMPANIES OF
LIKE NATURE AND SIMILARLY SITUATED.
3.8.
CONDUCT OF BUSINESS.
BORROWER WILL NOT AND
WILL NOT PERMIT ITS SUBSIDIARIES DIRECTLY OR INDIRECTLY TO