SYNTHETIC LEASE OR SIMILAR TRANSACTION INVOLVING ANY OF ITS ASSETS.
3.18
CAPITAL STOCK.
(A)
HOLDINGS WILL NOT ISSUE (I) ANY PREFERRED STOCK OTHER THAN
PERMITTED HOLDINGS PREFERRED STOCK OR (II) ANY REDEEMABLE COMMON STOCK; AND
(B)
HOLDINGS WILL NOT PERMIT ANY SUBSIDIARY OF HOLDINGS TO ISSUE ANY
STOCK (INCLUDING BY WAY OF SALES OF TREASURY STOCK) OR ANY OPTIONS OR WARRANTS
TO PURCHASE, OR SECURITIES CONVERTIBLE INTO, STOCK, EXCEPT (I) FOR TRANSFERS AND
REPLACEMENTS OF THE THEN OUTSTANDING SHARES OF STOCK,
(II) FOR STOCK SPLITS,
STOCK DIVIDENDS AND ADDITIONAL ISSUANCES WHICH DO NOT DECREASE THE PERCENTAGE
OWNERSHIP OF HOLDINGS OR ANY OF ITS SUBSIDIARIES IN ANY CLASS OF THE STOCK OF
BORROWER OR SUCH SUBSIDIARY, (III) IN THE CASE OF FOREIGN SUBSIDIARIES OF
BORROWER, TO QUALIFY DIRECTORS TO THE EXTENT REQUIRED UNDER APPLICABLE LAW, (IV)
SUBSIDIARIES OF BORROWER FORMED AFTER THE CLOSING DATE PURSUANT TO SECTION 3.14
MAY ISSUE STOCK TO BORROWER OR THE RESPECTIVE SUBSIDIARY OF BORROWER WHICH OWNS
SUCH STOCK IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 3.14 AND (V) ANY
FOREIGN SUBSIDIARY FORMED AFTER THE CLOSING DATE PURSUANT TO SECTION 3.14 MAY
ISSUE STOCK TO BORROWER, ANY SUBSIDIARY AND ANY OTHER INVESTOR IF THE INVESTMENT
IN SUCH FOREIGN SUBSIDIARY BY BORROWER AND ITS SUBSIDIARIES IS MADE IN
ACCORDANCE WITH SECTION 3.3.
ALL STOCK ISSUED IN ACCORDANCE WITH THIS SECTION
3.18(B) SHALL, TO THE EXTENT REQUIRED BY A PLEDGE AGREEMENT, BE DELIVERED TO
AGENT AND PLEDGED PURSUANT TO A PLEDGE AGREEMENT; AND
(C)
HOLDINGS SHALL RETIRE ALL SHARES OF HOLDINGS COMMON STOCK
PURCHASED PURSUANT TO THE SHARE REPURCHASE IMMEDIATELY UPON RECEIPT THEREOF BY
HOLDINGS.
38
SECTION 4.
FINANCIAL COVENANTS/REPORTING
Borrower covenants and agrees that from and after the date hereof until the
Termination Date, Borrower shall perform and comply with, and shall cause each
of the other Credit Parties to perform and comply with, all covenants in this
Section 4 applicable to such Person.
4.1
CAPITAL EXPENDITURE LIMITS.
(A)
BORROWER AND ITS SUBSIDIARIES ON A CONSOLIDATED BASIS SHALL NOT
MAKE CAPITAL EXPENDITURES DURING ANY FISCAL YEAR THAT EXCEED THE AMOUNT SET
FORTH IN THE TABLE BELOW OPPOSITE THE APPLICABLE FISCAL YEAR (THE "CAPEX
LIMIT"); PROVIDED, HOWEVER, THAT THE CAPEX LIMIT REFERENCED ABOVE WILL BE
INCREASED IN ANY PERIOD BY THE POSITIVE AMOUNT EQUAL TO THE LESSER OF (I) 25% OF
THE CAPEX LIMIT FOR THE IMMEDIATELY PRIOR PERIOD, AND (II) THE AMOUNT (IF ANY),
EQUAL TO THE DIFFERENCE OBTAINED BY TAKING THE CAPEX LIMIT MINUS THE ACTUAL
AMOUNT OF ANY CAPITAL EXPENDITURES EXPENDED DURING SUCH PRIOR PERIOD (THE "CARRY
OVER AMOUNT"), AND FOR PURPOSES OF MEASURING COMPLIANCE HEREWITH, THE CARRY OVER
AMOUNT SHALL BE DEEMED THE LAST AMOUNT SPENT ON CAPITAL EXPENDITURES IN THAT
SUCCEEDING PERIOD; PROVIDED, FURTHER, THE CARRY OVER AMOUNT FOR PURPOSES OF
MEASURING COMPLIANCE HEREWITH FOR THE 2005 FISCAL YEAR SHALL BE DEEMED TO BE $0.
Fiscal Year
Capex Limit
2005
$
22,000,000
2006
$
24,000,000
2007
$
26,000,000
2008
$
28,000,000
2009 and each Fiscal Year thereafter
$
30,000,000
(B)
NOTWITHSTANDING THE FOREGOING,