IN SECTIONS 7.11 AND 7.12 FOR THE CALCULATION PERIOD MOST RECENTLY
ENDED PRIOR TO THE DATE OF SUCH INCURRENCE OR ISSUANCE OF ADDITIONAL PERMITTED
SUBORDINATED DEBT, AND (IV) THE BORROWER SHALL HAVE FURNISHED TO THE
ADMINISTRATIVE AGENT A CERTIFICATE FROM AN AUTHORIZED OFFICER CERTIFYING AS TO
COMPLIANCE WITH THE REQUIREMENTS OF PRECEDING CLAUSES (I), (II) AND (III) AND
CONTAINING THE CALCULATIONS REQUIRED BY PRECEDING CLAUSE (III); PROVIDED
HOWEVER, THAT ADDITIONAL PERMITTED SUBORDINATED DEBT ISSUED AS IN KIND REGULARLY
SCHEDULED INTEREST PAYMENTS ON THERETOFORE OUTSTANDING ADDITIONAL PERMITTED
SUBORDINATED DEBT SHALL NOT BE SUBJECT TO THE REQUIREMENTS SPECIFIED IN
PRECEDING CLAUSES (I) THROUGH (IV); AND
(P)
ADDITIONAL UNSECURED INDEBTEDNESS OF THE BORROWER AND THE
SUBSIDIARY GUARANTORS NOT TO EXCEED AN AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF
$10.0 MILLION AT ANY TIME.
7.05
CAPITAL EXPENDITURES.
(A)
THE BORROWER WILL NOT, AND WILL NOT PERMIT ANY
OF ITS SUBSIDIARIES TO, INCUR CONSOLIDATED CAPITAL EXPENDITURES, PROVIDED THAT
THE BORROWER AND ITS SUBSIDIARIES MAY MAKE CONSOLIDATED CAPITAL EXPENDITURES NOT
TO EXCEED IN THE AGGREGATE IN ANY FISCAL YEAR OF THE BORROWER AN AMOUNT EQUAL TO
37.5% OF ADJUSTED CONSOLIDATED EBITDA FOR SUCH FISCAL YEAR.
(B)
IN THE EVENT THAT THE MAXIMUM AMOUNT WHICH IS PERMITTED TO BE
EXPENDED IN RESPECT OF CONSOLIDATED CAPITAL EXPENDITURES DURING ANY FISCAL YEAR
OF THE BORROWER PURSUANT TO SECTION 7.05(A) IS NOT FULLY EXPENDED DURING SUCH
FISCAL YEAR, THE MAXIMUM AMOUNT WHICH MAY BE EXPENDED DURING THE IMMEDIATELY
SUCCEEDING FISCAL YEAR OF THE BORROWER PURSUANT TO SECTION 7.05(A) SHALL BE
INCREASED BY SUCH UNUTILIZED AMOUNT.
7.06
ADVANCES, INVESTMENTS AND LOANS.
THE BORROWER WILL NOT, AND WILL NOT
PERMIT ANY OF ITS SUBSIDIARIES TO, LEND MONEY OR CREDIT OR MAKE ADVANCES TO ANY
PERSON (OTHER THAN EXCLUDED INTERCOMPANY PAYABLES), OR PURCHASE OR ACQUIRE ANY
STOCK, OBLIGATIONS OR SECURITIES OF, OR ANY OTHER INTEREST IN, OR MAKE ANY
CAPITAL CONTRIBUTION TO ANY PERSON, OR PURCHASE OR OWN A FUTURES CONTRACT OR
OTHERWISE BECOME LIABLE FOR THE PURCHASE OR SALE OF CURRENCY OR OTHER
COMMODITIES AT A FUTURE DATE IN THE NATURE OF A FUTURES CONTRACT (EACH OF THE
FOREGOING AN "INVESTMENT" AND, COLLECTIVELY, "INVESTMENTS"), EXCEPT:
61
(A)
THE BORROWER OR ANY SUBSIDIARY MAY INVEST IN CASH AND CASH
EQUIVALENTS;
(B)
THE BORROWER AND ANY SUBSIDIARY MAY ACQUIRE AND HOLD RECEIVABLES
OWING TO THEM, IF CREATED OR ACQUIRED IN THE ORDINARY COURSE OF BUSINESS AND
PAYABLE OR DISCHARGEABLE IN ACCORDANCE WITH CUSTOMARY TRADE TERMS AND/OR
REASONABLE EXTENSIONS THEREOF;
(C)
THE BORROWER AND ITS QUALIFIED SUBSIDIARIES MAY MAKE INTERCOMPANY
LOANS AND ADVANCES BETWEEN AND AMONG ONE ANOTHER (COLLECTIVELY, "INTERCOMPANY
LOANS"), PROVIDED THAT (I) EACH SUCH INTERCOMPANY LOAN SHALL BE EVIDENCED BY AN
INTERCOMPANY NOTE WHICH, IF HELD BY A PLEDGE PARTY, SHALL BE PLEDGED TO THE
COLLATERAL AGENT AS, AND TO THE EXTENT REQUIRED BY, THE PLEDGE AGREEMENT, (II)
EACH INTERCOMPANY LOAN MADE PURSUANT TO THIS CLAUSE (C) SHALL BE SUBJECT TO
SUBORDINATION AS, AND TO THE EXTENT REQUIRED BY, THE INTERCOMPANY SUBORDINATION
AGREEMENT (GIVING EFFECT TO EXCEPTIONS REQUIRED BY APPLICABLE LAW OR REGULATION
AS