TO SECTION 3.01(A)(VIII) OR IN THE DIP BUDGET SHALL NOT CONSTITUTE A BREACH OF
THE FOREGOING.
83
(J)
LIMITATION ON PREPAYMENTS AND
CANCELLATION OF DEBT AND PRE-PETITION OBLIGATIONS.
EXCEPT AS OTHERWISE ALLOWED
PURSUANT TO THE INTERIM ORDER, THE FINAL ORDER OR ANY ORDER OF THE BANKRUPTCY
COURT AND APPROVED BY THE REQUIRED LENDERS, (I) MAKE ANY PAYMENT OR PREPAYMENT
OR REDEMPTION OR ACQUISITION FOR VALUE (INCLUDING, WITHOUT LIMITATION, BY WAY OF
DEPOSITING WITH THE TRUSTEE WITH RESPECT THERETO MONEY OR SECURITIES BEFORE DUE
FOR THE PURPOSE OF PAYING WHEN DUE) OR ANY CANCELLATION OR OTHER RETIREMENT OF
ANY PRE-PETITION DEBT OR OTHER PRE-PETITION DATE OBLIGATIONS OF THE BORROWER OR
ANY GUARANTOR OTHER THAN REFINANCINGS OTHERWISE PERMITTED BY THIS AGREEMENT,
(II) PAY ANY INTEREST ON ANY PRE-PETITION DEBT OF THE BORROWER OR GUARANTOR
(WHETHER IN CASH, IN KIND SECURITIES OR OTHERWISE), OR (III) MAKE ANY PAYMENT OR
CREATE OR PERMIT ANY LIEN PURSUANT TO SECTION 361 OF THE BANKRUPTCY CODE (OR
PURSUANT TO ANY OTHER PROVISION OF THE BANKRUPTCY CODE AUTHORIZING ADEQUATE
PROTECTION) ON PROPERTY OF THE LOAN PARTIES, OR APPLY TO THE COURT FOR THE
AUTHORITY TO DO ANY OF THE FOREGOING; PROVIDED THAT (X) THE BORROWER MAY MAKE
PAYMENTS FOR ADMINISTRATIVE EXPENSES THAT ARE ALLOWED AND PAYABLE UNDER SECTIONS
330 AND 331 OF THE BANKRUPTCY CODE, (Y) THE BORROWER MAY PREPAY THE OBLIGATIONS
UNDER THE LOAN DOCUMENTS AND MAKE PAYMENTS PERMITTED BY THE FIRST DAY ORDERS,
AND (Z) THE BORROWER MAY MAKE PAYMENTS TO SUCH OTHER CLAIMANTS AND IN SUCH
AMOUNTS AS MAY BE CONSENTED TO BY THE INITIAL LENDERS AND APPROVED BY THE
BANKRUPTCY COURT.
IN ADDITION, NO LOAN PARTY SHALL PERMIT ANY OF ITS
SUBSIDIARIES TO MAKE ANY PAYMENT, REDEMPTION OR ACQUISITION ON BEHALF OF SUCH
LOAN PARTY WHICH SUCH LOAN PARTY IS PROHIBITED FROM MAKING UNDER THE PROVISIONS
OF THIS SUBSECTION (J).
(K)
CAPITAL EXPENDITURES.
MAKE, OR PERMIT ANY
OF ITS SUBSIDIARIES TO MAKE, ANY CAPITAL EXPENDITURES THAT WOULD CAUSE THE
AGGREGATE OF ALL SUCH CAPITAL EXPENDITURES MADE BY THE BORROWER AND ITS
SUBSIDIARIES (I) TO EXCEED (A) $11,000,000 FOR THE FISCAL QUARTER ENDING
JUNE 30, 2009, (B) $21,000,000 FOR THE FISCAL QUARTER ENDING SEPTEMBER 30, 2009,
OR (C) $24,000,000 FOR EACH SUBSEQUENT FISCAL QUARTER, OR (II) DURING THE PERIOD
FROM THE EFFECTIVE DATE TO THE TERMINATION DATE TO EXCEED $75,000,000.
(L)
MERGERS.
MERGE INTO OR CONSOLIDATE WITH
ANY PERSON OR PERMIT ANY PERSON TO MERGE INTO IT, EXCEPT (I) FOR MERGERS OR
CONSOLIDATION CONSTITUTING PERMITTED INVESTMENTS UNDER SECTION 5.02(G) OR ASSET
DISPOSITIONS PERMITTED PURSUANT TO SECTION 5.02(H), (II) MERGERS,
CONSOLIDATIONS, LIQUIDATIONS OR DISSOLUTIONS (A) BY ANY LOAN PARTY (OTHER THAN
THE BORROWER) WITH OR INTO ANY OTHER LOAN PARTY, OR (B) BY ANY NON-LOAN PARTY
WITH OR INTO ANY OTHER NON-LOAN PARTY; PROVIDED THAT, IN THE CASE OF ANY SUCH
MERGER OR CONSOLIDATION, THE PERSON FORMED BY OR SURVIVING SUCH MERGER OR
CONSOLIDATION SHALL BE A WHOLLY OWNED SUBSIDIARY OF THE BORROWER, AND PROVIDED
FURTHER THAT IN THE CASE OF ANY SUCH MERGER OR