SUBSIDIARY
PRE-EXISTING INDEBTEDNESS EXCEPT TO THE EXTENT, IF ANY, THE SAME IS GUARANTEED
BY BORROWER OR ANY OF ITS SUBSIDIARIES OTHER THAN THE APPLICABLE NEW SUBSIDIARY)
INCURRED OR ASSUMED BY BORROWER OR ANY SUBSIDIARY OF BORROWER IN CONNECTION WITH
A TRANSACTION OR SERIES OF RELATED TRANSACTIONS FOR THE PURPOSE OF OR RESULTING,
DIRECTLY OR INDIRECTLY, IN (A) THE ACQUISITION OF ALL OR SUBSTANTIALLY ALL OF
THE ASSETS OF A PERSON, OR OF ANY BUSINESS OR DIVISION OF A PERSON, (B) THE
ACQUISITION OF ALL OR ANY OF THE CAPITAL STOCK, PARTNERSHIP INTERESTS,
MEMBERSHIP INTERESTS OR EQUITY OF ANY PERSON, OR OTHERWISE CAUSING SUCH PERSON
TO BECOME A SUBSIDIARY, OR (C) A MERGER OR CONSOLIDATION OR ANY OTHER
COMBINATION WITH ANOTHER PERSON; PROVIDED THAT THE AGGREGATE AMOUNT OF SUCH
INDEBTEDNESS SO INCURRED OR ASSUMED UNDER THIS CLAUSE (IX), WHEN COMBINED WITH
ANY CASH CONSIDERATION GIVEN IN CONNECTION WITH ALL SUCH TRANSACTIONS DESCRIBED
IN CLAUSES (A), (B), OR (C) ABOVE DOES NOT EXCEED IN THE AGGREGATE THE SUM OF
$7,500,000; PROVIDED, HOWEVER, THAT IN THE EVENT THAT HOLDINGS CONSUMMATES AN
EQUITY FINANCING AFTER THE DATE OF THIS AGREEMENT (EXCLUDING THE TRANSACTIONS
CONTEMPLATED BY THE EQUITY DOCUMENTS, INCLUDING THE RIGHTS OFFERING REFERRED TO
THEREIN) THAT DOES NOT TRIGGER A FULL MANDATORY PREPAYMENT UNDER SECTION 2.7(B)
HEREOF, THEN AFTER PAYMENT OF ANY REQUIRED PARTIAL MANDATORY PREPAYMENT, USE OF
THE BALANCE OF THE PROCEEDS SHALL BE PERMITTED FOR THE PURPOSES SET FORTH IN
SUBSECTIONS (A), (B), OR (C) OF THIS SECTION 5.1(J)(IX); IT BEING UNDERSTOOD AND
AGREED THAT NOTHING CONTAINED IN THIS CLAUSE (IX) SHALL BE CONSTRUED TO LIMIT
THE INCURRENCE OF PURCHASE MONEY INDEBTEDNESS IN CONNECTION WITH SUCH
TRANSACTIONS PROVIDED THAT SUCH INCURRENCE COMPLIES WITH CLAUSE (VIII) OF THE
DEFINITION OF PERMITTED LIENS OR THE INCURRENCE OF NEW SUBSIDIARY PRE-EXISTING
INDEBTEDNESS PROVIDED THAT SUCH INCURRENCE COMPLIES
24
WITH THE DEFINITION THEREOF; (X) ANY ADDITIONAL UNSECURED INDEBTEDNESS OF ANY
KIND OR NATURE WHATSOEVER UP TO ANY AGGREGATE AMOUNT OF $1,000,000; AND (XI) ANY
NEW SUBSIDIARY PRE-EXISTING INDEBTEDNESS.
FOR PURPOSES OF DETERMINING
COMPLIANCE WITH THIS SECTION 5.1(J), IN THE EVENT THAT AN ITEM OF INDEBTEDNESS
MEETS THE CRITERIA OF MORE THAN ONE OF THE CATEGORIES HEREOF, THE BORROWER MAY,
IN ITS SOLE DISCRETION, CLASSIFY SUCH ITEM OF INDEBTEDNESS ON THE DATE OF
INCURRENCE IN ANY MANNER THAT COMPLIES WITH THIS SECTION 5.1(J), AND SUCH ITEM
OF INDEBTEDNESS WILL BE TREATED AS HAVING BEEN INCURRED PURSUANT ONLY TO ONE OF
SUCH CLAUSES.
NOTWITHSTANDING THE FOREGOING, NEITHER HOLDINGS NOR BORROWER
SHALL PERMIT ANY LICENSE SUBSIDIARY TO CREATE, INCUR, ASSUME OR OTHERWISE BECOME
LIABLE FOR OR SUFFER TO EXIST ANY INDEBTEDNESS, OTHER THAN INDEBTEDNESS IN FAVOR
OF AGENT OR ANY LENDER ARISING UNDER THE LOAN DOCUMENTS.
(K)
LOANS AND INVESTMENTS.
HOLDINGS AND BORROWER SHALL NOT, AND SHALL
NOT PERMIT ANY OF THEIR RESPECTIVE SUBSIDIARIES TO, PURCHASE OR OTHERWISE
ACQUIRE THE CAPITAL STOCK, ASSETS (CONSTITUTING A BUSINESS UNIT), OBLIGATIONS OR
OTHER SECURITIES OF OR ANY INTEREST IN ANY PERSON, OR OTHERWISE EXTEND ANY
CREDIT TO OR MAKE ANY ADDITIONAL