TO
SECTION 3.01(A)(VIII) OR IN THE DIP BUDGET SHALL NOT CONSTITUTE A BREACH OF THE
FOREGOING.
83
(J)
LIMITATION ON PREPAYMENTS AND CANCELLATION OF DEBT AND
PRE-PETITION OBLIGATIONS.
EXCEPT AS OTHERWISE ALLOWED PURSUANT TO THE INTERIM
ORDER, THE FINAL ORDER OR ANY ORDER OF THE BANKRUPTCY COURT AND APPROVED BY THE
REQUIRED LENDERS, (I) MAKE ANY PAYMENT OR PREPAYMENT OR REDEMPTION OR
ACQUISITION FOR VALUE (INCLUDING, WITHOUT LIMITATION, BY WAY OF DEPOSITING WITH
THE TRUSTEE WITH RESPECT THERETO MONEY OR SECURITIES BEFORE DUE FOR THE PURPOSE
OF PAYING WHEN DUE) OR ANY CANCELLATION OR OTHER RETIREMENT OF ANY PRE-PETITION
DEBT OR OTHER PRE-PETITION DATE OBLIGATIONS OF THE BORROWER OR ANY GUARANTOR
OTHER THAN REFINANCINGS OTHERWISE PERMITTED BY THIS AGREEMENT, (II) PAY ANY
INTEREST ON ANY PRE-PETITION DEBT OF THE BORROWER OR GUARANTOR (WHETHER IN CASH,
IN KIND SECURITIES OR OTHERWISE), OR (III) MAKE ANY PAYMENT OR CREATE OR PERMIT
ANY LIEN PURSUANT TO SECTION 361 OF THE BANKRUPTCY CODE (OR PURSUANT TO ANY
OTHER PROVISION OF THE BANKRUPTCY CODE AUTHORIZING ADEQUATE PROTECTION) ON
PROPERTY OF THE LOAN PARTIES, OR APPLY TO THE COURT FOR THE AUTHORITY TO DO ANY
OF THE FOREGOING; PROVIDED THAT (X) THE BORROWER MAY MAKE PAYMENTS FOR
ADMINISTRATIVE EXPENSES THAT ARE ALLOWED AND PAYABLE UNDER SECTIONS 330 AND 331
OF THE BANKRUPTCY CODE, (Y) THE BORROWER MAY PREPAY THE OBLIGATIONS UNDER THE
LOAN DOCUMENTS AND MAKE PAYMENTS PERMITTED BY THE FIRST DAY ORDERS, AND (Z) THE
BORROWER MAY MAKE PAYMENTS TO SUCH OTHER CLAIMANTS AND IN SUCH AMOUNTS AS MAY BE
CONSENTED TO BY THE INITIAL LENDERS AND APPROVED BY THE BANKRUPTCY COURT.
IN
ADDITION, NO LOAN PARTY SHALL PERMIT ANY OF ITS SUBSIDIARIES TO MAKE ANY
PAYMENT, REDEMPTION OR ACQUISITION ON BEHALF OF SUCH LOAN PARTY WHICH SUCH LOAN
PARTY IS PROHIBITED FROM MAKING UNDER THE PROVISIONS OF THIS SUBSECTION (J).
(K)
CAPITAL EXPENDITURES.
MAKE, OR PERMIT ANY OF ITS SUBSIDIARIES TO
MAKE, ANY CAPITAL EXPENDITURES THAT WOULD CAUSE THE AGGREGATE OF ALL SUCH
CAPITAL EXPENDITURES MADE BY THE BORROWER AND ITS SUBSIDIARIES (I) TO EXCEED
(A) $11,000,000 FOR THE FISCAL QUARTER ENDING JUNE 30, 2009, (B) $21,000,000 FOR
THE FISCAL QUARTER ENDING SEPTEMBER 30, 2009, OR (C) $24,000,000 FOR EACH
SUBSEQUENT FISCAL QUARTER, OR (II) DURING THE PERIOD FROM THE EFFECTIVE DATE TO
THE TERMINATION DATE TO EXCEED $75,000,000.
(L)
MERGERS.
MERGE INTO OR CONSOLIDATE WITH ANY PERSON OR PERMIT ANY
PERSON TO MERGE INTO IT, EXCEPT (I) FOR MERGERS OR CONSOLIDATION CONSTITUTING
PERMITTED INVESTMENTS UNDER SECTION 5.02(G) OR ASSET DISPOSITIONS PERMITTED
PURSUANT TO SECTION 5.02(H), (II) MERGERS, CONSOLIDATIONS, LIQUIDATIONS OR
DISSOLUTIONS (A) BY ANY LOAN PARTY (OTHER THAN THE BORROWER) WITH OR INTO ANY
OTHER LOAN PARTY, OR (B) BY ANY NON-LOAN PARTY WITH OR INTO ANY OTHER NON-LOAN
PARTY; PROVIDED THAT, IN THE CASE OF ANY SUCH MERGER OR CONSOLIDATION, THE
PERSON FORMED BY OR SURVIVING SUCH MERGER OR CONSOLIDATION SHALL BE A WHOLLY
OWNED SUBSIDIARY OF THE BORROWER, AND PROVIDED FURTHER THAT IN THE CASE OF ANY
SUCH MERGER OR