CASH OR IN KIND (IN
REASONABLY EQUIVALENT VALUE), WITHOUT DISCOUNT;
(XII)
INVESTMENTS IN INTEREST RATE, FOREIGN EXCHANGE AND COMMODITY
HEDGES THAT ARE ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS AND NOT FOR ANY
SPECULATIVE PURPOSE;
(XIII)
INVESTMENTS RECEIVED IN CONNECTION WITH THE BANKRUPTCY OR
REORGANIZATION OF, OR SETTLEMENT OF DELINQUENT ACCOUNTS AND DISPUTES WITH
CUSTOMERS AND SUPPLIERS, IN EACH CASE IN THE ORDINARY COURSE OF BUSINESS;
(XIV)
INVESTMENTS CONSTITUTING DEPOSITS MADE IN THE ORDINARY COURSE
CONSISTENT WITH PAST PRACTICE TO SECURE THE PERFORMANCE OF LEASES;
(XV)
INVESTMENTS CONSTITUTING LOANS TO EMPLOYEES OF THE BORROWER AND ITS
SUBSIDIARIES TO PURCHASE CAPITAL STOCK OF THE BORROWER NOT EXCEEDING IN THE
AGGREGATE $5,000,000 AT ANY TIME OUTSTANDING; AND
(XVI)
INVESTMENTS CONSTITUTING (A) ACCOUNTS RECEIVABLE ARISING, (B) TRADE
DEBT GRANTED, OR (C) DEPOSITS MADE IN CONNECTION WITH THE PURCHASE PRICE OF
GOODS OR SERVICES, IN EACH CASE IN THE ORDINARY COURSE OF BUSINESS ON CUSTOMARY
TERMS.
(C)
RESTRICTED PAYMENTS.
THE BORROWER SHALL NOT AND SHALL NOT PERMIT
ANY OF ITS SUBSIDIARIES TO, DECLARE, PAY OR MAKE, OR OFFER TO PAY OR MAKE ANY
RESTRICTED PAYMENT (DIRECTLY OR INDIRECTLY THROUGH ANY AFFILIATE) EXCEPT THAT SO
LONG AS NO EVENT OF DEFAULT EXISTS IMMEDIATELY PRIOR TO ANY RESTRICTED PAYMENT
OTHERWISE PERMITTED BELOW OR WOULD RESULT THEREFROM (OTHER THAN WITH RESPECT OF
CLAUSE (II) BELOW): (I) THE BORROWER MAY REPURCHASE, REDEEM OR OTHERWISE ACQUIRE
SHARES OF, OR OPTIONS TO PURCHASE, CAPITAL STOCK OF THE BORROWER OR STOCK
APPRECIATION RIGHTS FROM DIRECTORS, OFFICERS AND EMPLOYEES (OR THEIR LEGAL
REPRESENTATIVES OR HEIRS, AS THE CASE MAY BE) OF THE BORROWER OR ANY SUBSIDIARY
OF THE BORROWER WHOSE EMPLOYMENT
53
HAS TERMINATED OR WHO HAS DIED OR RETIRED OR BECOME DISABLED, OR WHO HAS
SUFFERED SOME OTHER HARDSHIP AND WITH RESPECT TO WHOM THE BOARD OF DIRECTORS OF
THE BORROWER HAS OTHERWISE DETERMINED TO MAKE SUCH A REPURCHASE, REDEMPTION OR
OTHER ACQUISITION IN LIGHT OF SUCH HARDSHIP OR UPON THE VESTING OF STOCK
APPRECIATION RIGHTS; PROVIDED THAT, (A) THE AMOUNTS PAID IN CASH OR OTHER
IMMEDIATELY AVAILABLE FUNDS IN CONNECTION WITH SUCH RESTRICTED PAYMENTS SHALL
NOT EXCEED $7,000,000 IN THE AGGREGATE AFTER THE DATE HEREOF AND (B) THE
AGGREGATE PRINCIPAL AMOUNT OF DEBT ISSUED BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES TO FINANCE SUCH RESTRICTED PAYMENTS SHALL NOT EXCEED $5,000,000 IN
THE AGGREGATE AT ANY TIME OUTSTANDING; (II) ANY SUBSIDIARY OF THE BORROWER MAY
MAKE RESTRICTED PAYMENTS RATABLY AMONG ALL OF ITS EQUITY HOLDERS; (III) THE
CAPITAL STOCK OF NORTH AMERICAN SITE DEVELOPERS, INC. OWNED BY BERARDI MAY BE
REDEEMED, REPURCHASED OR OTHERWISE ACQUIRED FOR AN AMOUNT NOT GREATER THAN
$50,000 AS PART OF THE NASI RESTRUCTURING AND (IV) THE BORROWER MAY MAKE
RESTRICTED PAYMENTS NOT TO EXCEED $5,000,000 IN THE AGGREGATE FOR ALL SUCH
RESTRICTED PAYMENTS MADE DURING ANY FISCAL YEAR.
(D)
TRANSACTIONS WITH AFFILIATES.
THE BORROWER SHALL NOT AND SHALL
NOT PERMIT ANY OF ITS SUBSIDIARIES TO, ENTER INTO, OR CAUSE, SUFFER OR PERMIT TO
EXIST ANY ARRANGEMENT OR CONTRACT WITH ANY OF ITS OTHER