LEASES, AGREEMENTS OR OTHER OBLIGATIONS
UNDER ARRANGEMENTS WITH UTILITIES, INSURANCE AGREEMENTS, CONSTRUCTION
AGREEMENTS, PERFORMANCE BONDS OR OTHER OBLIGATIONS OF A LIKE NATURE INCURRED IN
THE ORDINARY COURSE OF BUSINESS, IN EACH CASE IF (BUT ONLY IF) SUCH OBLIGATIONS
ARE NOT FOR BORROWED MONEY ("ORDINARY COURSE DEPOSITS"); PROVIDED THAT THE
AGGREGATE AMOUNT OF SUCH INVESTMENTS MADE PURSUANT TO THIS CLAUSE (P), WHEN
ADDED TO THE AGGREGATE OUTSTANDING AMOUNT OF INVESTMENTS CONSTITUTING ORDINARY
COURSE DEPOSITS IN EXISTENCE ON THE DATE HEREOF AND PERMITTED UNDER CLAUSE
(M) ABOVE, DOES NOT EXCEED $50,000,000 IN THE AGGREGATE AT ANY TIME OUTSTANDING;
AND (Q) RECEIVABLES (INCLUDING PURSUANT TO EXTENSIONS OF TRADE CREDIT) AND
PREPAID EXPENSES, IN EACH CASE ARISING IN THE ORDINARY COURSE OF BUSINESS;
PROVIDED, HOWEVER, THAT SUCH RECEIVABLES OR PREPAID EXPENSES WOULD BE RECORDED
AS CURRENT ASSETS OF SUCH PERSON IN ACCORDANCE WITH GAAP;
provided, however, that with respect to any investment, the Borrowers may, in
their sole discretion, allocate all or any portion of such investment to one or
more of the above clauses (a) through (q) so that all or a portion of such
investment would be permitted hereunder.
67
7.5.
LOANS.
MAKE ADVANCES, LOANS OR EXTENSIONS OF
CREDIT TO ANY PERSON, INCLUDING ANY PARENT, SUBSIDIARY OR AFFILIATE EXCEPT WITH
RESPECT TO (A) THE EXTENSION OF COMMERCIAL TRADE CREDIT IN CONNECTION WITH THE
SALE OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS, (B) INTERCOMPANY LOANS
BETWEEN BORROWERS IN THE ORDINARY COURSE OF BUSINESS, (C) LOANS TO EMPLOYEES IN
THE ORDINARY COURSE OF BUSINESS NOT TO EXCEED THE AGGREGATE AMOUNT OF $250,000
AT ANY TIME OUTSTANDING, AND (D) INVESTMENTS PERMITTED UNDER THIS AGREEMENT.
7.6.
CAPITAL EXPENDITURES.
CONTRACT FOR, PURCHASE
OR MAKE ANY EXPENDITURE OR COMMITMENTS FOR UNFUNDED CAPITAL EXPENDITURES IN AN
AGGREGATE AMOUNT FOR ALL BORROWERS IN EXCESS OF: (A) $56,500,000 FOR THE PERIOD
FROM THE CLOSING DATE THROUGH DECEMBER 31, 2010; (B) $20,000,000 FOR FISCAL YEAR
ENDING DECEMBER 31, 2011 AND (C) $25,000,000 FOR FISCAL YEAR ENDING DECEMBER 31,
2012 AND EACH FISCAL YEAR THEREAFTER.
7.7.
DISTRIBUTIONS.
PAY OR MAKE ANY DISTRIBUTION
ON ANY EQUITY INTEREST OF BORROWER OR APPLY ANY OF ITS FUNDS, PROPERTY OR ASSETS
TO THE PURCHASE, REDEMPTION OR OTHER RETIREMENT OF ANY EQUITY INTEREST, OR OF
ANY OPTIONS TO PURCHASE OR ACQUIRE ANY SUCH EQUITY INTEREST OF ANY BORROWER
EXCEPT THAT ANY BORROWER MAY MAKE DISTRIBUTIONS TO ANY OTHER BORROWER.
7.8.
INDEBTEDNESS.
CREATE, INCUR, ASSUME ASSUME OR
SUFFER TO EXIST ANY INDEBTEDNESS (EXCLUSIVE OF TRADE DEBT) EXCEPT IN RESPECT OF:
(A)
INDEBTEDNESS TO LENDERS;
(B)
INDEBTEDNESS INCURRED FOR CAPITAL
EXPENDITURES PERMITTED UNDER SECTION 7.6 HEREOF,
(C)
INDEBTEDNESS DUE UNDER THE INDENTURE LOAN
DOCUMENTATION;
(D)
THE INCURRENCE BY ANY BORROWER OF
INDEBTEDNESS (INCLUDING INDEBTEDNESS REPRESENTED BY CAPITAL LEASE OBLIGATIONS,
MORTGAGE FINANCINGS OR PURCHASE MONEY OBLIGATIONS) INCURRED FOR THE PURPOSE OF
FINANCING ALL OR ANY PART OF THE PURCHASE PRICE OR COST OF DESIGN, DEVELOPMENT,
CONSTRUCTION, INSTALLATION OR IMPROVEMENT OF PROPERTY (REAL OR PERSONAL), PLANT
OR EQUIPMENT USED IN A PERMITTED BUSINESS OF SUCH BORROWER (INCLUDING THROUGH
THE DIRECT