OF MANAGEMENT (IN AN AMOUNT NOT LESS
THAN SUCH DEBT AND FINANCED FROM A SOURCE OTHER THAN SUCH DEBT) WILL NOT BE
DEEMED TO CONSTITUTE A PAYMENT IN VIOLATION OF THIS SECTION 5.02(G) OR ANY OTHER
PROVISION HEREOF.
(H)
AMENDMENT, ETC. OF DOCUMENTS.
(I) AMEND OR OTHERWISE CHANGE, OR
CONSENT TO ANY AMENDMENT OR CHANGE OF, ANY OF THE TERMS OF ANY SUBORDINATED DEBT
DOCUMENT OR ANY OTHER PERMITTED DEBT DOCUMENT, IN EACH CASE, IN A MANNER THAT
WOULD BE ADVERSE TO THE LENDER PARTIES IN ANY MATERIAL RESPECT OR PERMIT ANY OF
ITS SUBSIDIARIES TO DO ANY OF THE FOREGOING OR (II) DESIGNATE ANY INDEBTEDNESS
(OTHER THAN THE OBLIGATIONS OF THE LOAN PARTIES PURSUANT TO THE LOAN DOCUMENTS)
AS "DESIGNATED SENIOR INDEBTEDNESS" (OR ANY OTHER DEFINED TERM HAVING A SIMILAR
MEANING) FOR PURPOSES OF THE NEW SENIOR CONVERTIBLE NOTES INDENTURE.
(I)
PARTNERSHIPS, ETC.
BECOME A GENERAL PARTNER IN ANY GENERAL OR
LIMITED PARTNERSHIP OR JOINT VENTURE WHICH IS NOT A LIMITED LIABILITY ENTITY, OR
PERMIT ANY OF ITS SUBSIDIARIES TO DO SO, OTHER THAN ANY SUBSIDIARY THE SOLE
ASSETS OF WHICH CONSIST OF ITS INTEREST IN SUCH PARTNERSHIP OR JOINT VENTURE.
(J)
CAPITAL EXPENDITURES.
FROM AND AFTER THE EFFECTIVE DATE, MAKE,
OR PERMIT ANY OF ITS SUBSIDIARIES TO MAKE, ANY CAPITAL EXPENDITURES THAT WOULD
CAUSE THE AGGREGATE AMOUNT OF ALL CAPITAL EXPENDITURES OF THE U.S. BORROWER AND
ITS SUBSIDIARIES IN ANY FISCAL YEAR SET FORTH BELOW TO EXCEED THE AMOUNT SET
FORTH FOR SUCH FISCAL YEAR BELOW:
Fiscal Year
Capital
Expenditures
2010
$
25,000,000
2011
$
35,500,000
2012
$
41,000,000
2013
$
41,000,000
NO AMOUNT REFERRED TO ABOVE MAY BE CARRIED FORWARD OR CARRIED BACKWARDS FOR
EXPENDITURE IN A SUBSEQUENT OR PRIOR FISCAL YEAR IF SUCH AMOUNT IS NOT EXPENDED
IN THE FISCAL YEAR FOR WHICH IT IS PERMITTED.
(K)
NEGATIVE PLEDGE.
ENTER INTO OR SUFFER TO EXIST, OR PERMIT ANY OF
ITS SUBSIDIARIES TO ENTER INTO OR SUFFER TO EXIST, ANY AGREEMENT PROHIBITING OR
CONDITIONING THE CREATION OR ASSUMPTION OF ANY LIEN UPON ANY OF ITS PROPERTY OR
ASSETS OTHER THAN (I) IN FAVOR OF THE SECURED PARTIES OR (II) IN CONNECTION WITH
(A) ANY SURVIVING DEBT OR (B) ANY PERMITTED SUBORDINATED DEBT OR (III) CUSTOMARY
RESTRICTIONS IN SUBORDINATED DEBT DOCUMENTS REQUIRING EQUAL AND RATABLE LIENS IF
OTHER PERMITTED SUBORDINATED DEBT IS SECURED.
Section 5.03
Reporting Requirements.
So long as any Advance shall remain
unpaid or any Letter of Credit shall be outstanding, the U.S. Borrower will
furnish to the Lender Parties:
72
(A)
DEFAULT OR LITIGATION NOTICE.
PROMPTLY UPON ANY RESPONSIBLE
OFFICER OF EITHER BORROWER OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OBTAINING
KNOWLEDGE THEREOF, NOTICE OF (I) THE OCCURRENCE OF ANY EVENT THAT CONSTITUTES A
DEFAULT OR AN EVENT OF DEFAULT, WHICH NOTICE SHALL SPECIFY THE NATURE THEREOF,
THE PERIOD OF EXISTENCE THEREOF AND WHAT ACTION THE APPROPRIATE BORROWER
PROPOSES TO TAKE WITH RESPECT THERETO, AND (II) ANY LITIGATION OR GOVERNMENTAL
PROCEEDING PENDING AGAINST EITHER BORROWER OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES THAT COULD REASONABLY BE