WITH ANY AFFILIATE OF THE BORROWER OR ANY OF ITS
SUBSIDIARIES, OTHER THAN IN THE ORDINARY COURSE OF BUSINESS AND ON TERMS AND
CONDITIONS SUBSTANTIALLY AS FAVORABLE TO THE BORROWER OR SUCH SUBSIDIARY AS
WOULD REASONABLY BE OBTAINED BY THE BORROWER OR SUCH SUBSIDIARY AT THAT TIME IN
A COMPARABLE ARM'S-LENGTH TRANSACTION WITH A PERSON OTHER THAN AN AFFILIATE,
EXCEPT THAT THE FOLLOWING IN ANY EVENT SHALL BE PERMITTED:
(I)
DIVIDENDS MAY BE PAID TO THE EXTENT PROVIDED IN SECTION 10.03;
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(II)
LOANS MAY BE MADE AND OTHER TRANSACTIONS MAY BE ENTERED INTO BY
THE BORROWER AND ITS SUBSIDIARIES TO THE EXTENT PERMITTED BY SECTIONS 10.02,
10.04 AND 10.05;
(III)
CUSTOMARY FEES, INDEMNITIES AND REIMBURSEMENTS MAY BE PAID TO
NON-OFFICER DIRECTORS OF THE BORROWER AND ITS SUBSIDIARIES; AND
(IV)
THE BORROWER AND ITS SUBSIDIARIES MAY ENTER INTO, AND MAY MAKE
PAYMENTS UNDER, EMPLOYMENT AGREEMENTS, EMPLOYEE BENEFITS PLANS, STOCK OPTION
PLANS, INDEMNIFICATION PROVISIONS AND OTHER SIMILAR COMPENSATORY ARRANGEMENTS
WITH OFFICERS, EMPLOYEES AND DIRECTORS OF THE BORROWER AND ITS SUBSIDIARIES IN
THE ORDINARY COURSE OF BUSINESS.
10.07.
CAPITAL EXPENDITURES.
(A)
THE BORROWER WILL NOT, AND WILL NOT
PERMIT ANY OF ITS SUBSIDIARIES TO, MAKE ANY CAPITAL EXPENDITURES, EXCEPT THAT
THE BORROWER AND ITS SUBSIDIARIES MAY MAKE CAPITAL EXPENDITURES SO LONG AS THE
AGGREGATE AMOUNT OF SUCH CAPITAL EXPENDITURES MADE BY ALL SUCH PERSONS UNDER
THIS SECTION 10.07(A) DOES NOT EXCEED IN THE AGGREGATE (X) FOR THE PERIOD FROM
THE EFFECTIVE DATE THROUGH AND INCLUDING DECEMBER 31, 2004, $2,000,000 OR (Y)
FOR ANY FISCAL YEAR OF THE BORROWER SET FORTH BELOW (TAKEN AS ONE ACCOUNTING
PERIOD) THE SUM OF (I) THE AMOUNT SET FORTH OPPOSITE SUCH FISCAL YEAR BELOW PLUS
(II) AN AMOUNT EQUAL TO 25% OF THE ACQUIRED EBITDA OF EACH ACQUIRED ENTITY OR
BUSINESS ACQUIRED AFTER THE EFFECTIVE DATE AND PRIOR TO THE FIRST DAY OF THE
RESPECTIVE FISCAL YEAR SET FORTH BELOW FOR THE TRAILING TWELVE MONTHS OF SUCH
ACQUIRED ENTITY OR BUSINESS IMMEDIATELY PRECEDING ITS ACQUISITION FOR WHICH
FINANCIAL STATEMENTS HAVE BEEN MADE AVAILABLE TO THE BORROWER AND THE LENDERS
PLUS (III) DURING THE RESPECTIVE FISCAL YEAR OF ANY SUCH ACQUISITION OF AN
ACQUIRED ENTITY OR BUSINESS, AN AMOUNT EQUAL TO THE AMOUNT FOR SUCH ACQUIRED
ENTITY OR BUSINESS SPECIFIED IN PRECEDING CLAUSE (II) MULTIPLIED BY A
PERCENTAGE, THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS IN SUCH FISCAL YEAR
AFTER THE DATE OF THE RESPECTIVE ACQUISITION AND THE DENOMINATOR OF WHICH IS 365
OR 366, AS THE CASE MAY BE:
Fiscal Year Ending
Amount
December 31, 2005
$
25.0 million
December 31, 2006
$
26.0 million
December 31, 2007
$
28.0 million
December 31, 2008
$
30.0 million
(B)
IN ADDITION TO THE FOREGOING, IN THE EVENT THAT THE AMOUNT OF
CAPITAL EXPENDITURES PERMITTED TO BE MADE BY THE BORROWER AND ITS SUBSIDIARIES
PURSUANT TO CLAUSE (A)(Y) ABOVE IN ANY FISCAL YEAR OF THE BORROWER (BEFORE
GIVING EFFECT TO ANY INCREASE IN SUCH PERMITTED CAPITAL EXPENDITURE AMOUNT
PURSUANT TO THIS CLAUSE (B)) IS GREATER THAN