OR EQUITY EQUIVALENTS OF THE BORROWER.
SECTION 7.13
SALE AND LEASEBACK TRANSACTIONS.
NONE OF THE GROUP COMPANIES WILL
DIRECTLY OR INDIRECTLY BECOME OR REMAIN LIABLE AS LESSEE OR AS GUARANTOR OR
OTHER SURETY WITH RESPECT TO ANY LEASE (WHETHER AN OPERATING LEASE OR A CAPITAL
LEASE) OF ANY PROPERTY (WHETHER REAL, PERSONAL OR MIXED), WHETHER NOW OWNED OR
HEREAFTER ACQUIRED, (I) WHICH SUCH GROUP COMPANY HAS SOLD OR TRANSFERRED OR IS
TO SELL OR TRANSFER TO ANY OTHER PERSON WHICH IS NOT A GROUP COMPANY OR (II)
WHICH SUCH GROUP COMPANY INTENDS TO USE FOR SUBSTANTIALLY THE SAME PURPOSE AS
ANY OTHER PROPERTY WHICH HAS BEEN SOLD OR IS TO BE SOLD OR TRANSFERRED BY SUCH
GROUP COMPANY TO ANOTHER PERSON WHICH IS NOT A GROUP COMPANY IN CONNECTION WITH
SUCH LEASE; PROVIDED, HOWEVER, THAT THE GROUP COMPANIES MAY ENTER INTO SUCH
TRANSACTIONS WITH RESPECT TO PERSONAL PROPERTY, IN AN AGGREGATE AMOUNT OF UP TO
$5,000,000 IN SALES PROCEEDS DURING THE TERM OF THIS AGREEMENT, IF (I) AFTER
GIVING EFFECT ON A PRO-FORMA BASIS TO ANY SUCH TRANSACTION THE BORROWER SHALL BE
IN COMPLIANCE WITH ALL OTHER PROVISIONS OF THIS AGREEMENT, INCLUDING SECTION
7.01 AND SECTION 7.02, (II) THE GROSS CASH PROCEEDS OF ANY SUCH TRANSACTION ARE
AT LEAST EQUAL TO THE FAIR MARKET VALUE OF SUCH PROPERTY (AS DETERMINED BY THE
BOARD OF DIRECTORS, WHOSE DETERMINATION SHALL BE CONCLUSIVE IF MADE IN GOOD
FAITH) AND (III) THE NET CASH PROCEEDS ARE FORWARDED TO THE ADMINISTRATIVE AGENT
AS SET FORTH IN SECTION 2.09(B)(III) TO THE EXTENT REQUIRED THEREIN.
SECTION 7.14
CAPITAL EXPENDITURES.
(A)
NONE OF THE GROUP COMPANIES WILL MAKE ANY CONSOLIDATED CAPITAL
EXPENDITURES, EXCEPT THAT DURING ANY OF THE FISCAL YEARS SET FORTH BELOW, THE
BORROWER AND ITS SUBSIDIARIES MAY MAKE CONSOLIDATED CAPITAL EXPENDITURES SO LONG
AS THE AGGREGATE AMOUNT OF SUCH CONSOLIDATED CAPITAL EXPENDITURES DOES NOT
EXCEED THE AMOUNT INDICATED OPPOSITE SUCH PERIOD:
Fiscal Year Ending October 31
Amount
2007
$
25,000,000
2008
$
27,500,000
2009
$
30,000,000
2010
$
32,500,000
2011
$
35,000,000
2012 and thereafter
$
37,500,000
(B)
TO THE EXTENT THAT CONSOLIDATED CAPITAL EXPENDITURES PERMITTED
UNDER SUBSECTION (A) ABOVE FOR ANY PERIOD SET FORTH ABOVE ARE LESS THAN THE
APPLICABLE AMOUNT SPECIFIED IN THE TABLE IN SUBSECTION (A) ABOVE, 100% OF THE
DIFFERENCE MAY BE CARRIED FORWARD AND UTILIZED TO MAKE CONSOLIDATED CAPITAL
EXPENDITURES DURING THE IMMEDIATELY SUCCEEDING FISCAL YEAR.
(C)
NOTWITHSTANDING THE FOREGOING, THE BORROWER AND ITS SUBSIDIARIES
MAY MAKE CONSOLIDATED CAPITAL EXPENDITURES (WHICH CONSOLIDATED CAPITAL
EXPENDITURES WILL NOT BE INCLUDED IN ANY DETERMINATION UNDER SUBSECTION (A)
ABOVE) WITH (A) THE NET CASH PROCEEDS OF ASSET DISPOSITIONS, CASUALTIES AND
CONDEMNATIONS, TO THE EXTENT SUCH NET CASH PROCEEDS ARE NOT REQUIRED TO BE
APPLIED TO REPAY LOANS OR CASH COLLATERALIZE L/C OBLIGATIONS PURSUANT TO
SECTION 2.09(B)(III), (B) THE NET CASH PROCEEDS OF QUALIFYING EQUITY ISSUANCES
NOT OTHERWISE UTILIZED FOR ANY PURPOSE SPECIFIED IN CLAUSE (II) OF THE
DEFINITION OF "QUALIFYING EQUITY ISSUANCE" AND (C) THAT PORTION OF EXCESS CASH
FLOW FOR THE FISCAL YEARS ENDED