SHALL BE DEEMED TO EXIST PURSUANT TO THE FINANCIAL COVENANTS
(AND ANY SUCH DEFAULT OR EVENT OF DEFAULT SHALL BE RETROACTIVELY CONSIDERED NOT
TO HAVE EXISTED OR OCCURRED).
IF THE EQUITY CURE IS NOT CONSUMMATED WITHIN 15
BUSINESS DAYS AFTER DELIVERY OF THE CURE NOTICE, EACH SUCH DEFAULT OR EVENT OF
DEFAULT SHALL BE DEEMED REINSTATED.
(IV)
THE CASH AMOUNT RECEIVED BY THE BORROWER PURSUANT TO EXERCISE OF
THE RIGHT TO MAKE AN EQUITY CURE SHALL BE ADDED TO EBITDA FOR THE LAST QUARTER
OF THE IMMEDIATELY PRECEDING TESTING PERIOD SOLELY FOR PURPOSES OF RECALCULATING
COMPLIANCE WITH THE FINANCIAL COVENANTS FOR SUCH PERIOD AND OF CALCULATING THE
FINANCIAL COVENANTS AS OF THE END OF THE NEXT THREE FOLLOWING PERIODS.
THE
EQUITY CURE SHALL NOT BE TAKEN INTO ACCOUNT FOR PURPOSES OF CALCULATING THE
FINANCIAL COVENANTS IN ORDER TO DETERMINE PRO FORMA COMPLIANCE WITH THE
FINANCIAL COVENANTS FOR PURPOSES OF THE INCURRENCE OF ANY DEBT, THE UNDERTAKING
OF ANY PERMITTED ACQUISITION OR THE MAKING OF ANY CAPITAL EXPENDITURE OR FOR ANY
OTHER PURPOSE.
94
7.12
CAPITAL EXPENDITURES.
MAKE OR BECOME LEGALLY OBLIGATED TO MAKE ANY
CAPITAL EXPENDITURE, EXCEPT FOR CAPITAL EXPENDITURES NOT EXCEEDING, IN THE
AGGREGATE FOR THE BORROWER AND ITS SUBSIDIARIES DURING (A) EACH OF FISCAL YEARS
2007, 2008 AND 2009, $12,000,000, (B) FISCAL YEAR 2010 AND (C) EACH SUBSEQUENT
FISCAL YEAR, $12,500,000; PROVIDED, HOWEVER, THAT SO LONG AS NO DEFAULT HAS
OCCURRED AND IS CONTINUING OR WOULD RESULT FROM ANY SUCH EXPENDITURE, UP TO 100%
OF SUCH AMOUNT, IF NOT EXPENDED IN THE FISCAL YEAR FOR WHICH IT IS PERMITTED,
MAY BE CARRIED OVER FOR EXPENDITURE IN THE NEXT FOLLOWING FISCAL YEAR (THE
"CAPITAL EXPENDITURE CARRYOVER AMOUNT"); PROVIDED FURTHER THAT ANY CAPITAL
EXPENDITURES MADE IN A PARTICULAR FISCAL YEAR SHALL FIRST BE DEEMED TO HAVE BEEN
MADE WITH THE PORTION OF CAPITAL EXPENDITURES PERMITTED FOR SUCH FISCAL YEAR,
BEFORE THE CAPITAL EXPENDITURE CARRYOVER AMOUNT IS APPLIED TO SUCH FISCAL YEAR.
NOTWITHSTANDING ANYTHING TO THE CONTRARY WITH RESPECT TO ANY FISCAL YEAR OF THE
BORROWER DURING WHICH A PERMITTED ACQUISITION IS CONSUMMATED AND FOR EACH FISCAL
YEAR SUBSEQUENT THERETO, THE AMOUNT OF CAPITAL EXPENDITURES PERMITTED UNDER THE
PRECEDING SENTENCE APPLICABLE TO EACH FISCAL YEAR SHALL BE INCREASED BY AN
AMOUNT EQUAL TO THE QUOTIENT OBTAINED BY DIVIDING (A) THE AMOUNT OF SUCH CAPITAL
EXPENDITURES (DETERMINED IN ACCORDANCE WITH GAAP) MADE BY THE ACQUIRED ENTITY OR
BUSINESS FOR THE THIRTY-SIX MONTH PERIOD IMMEDIATELY PRECEDING THE CONSUMMATION
OF SUCH PERMITTED ACQUISITION, BY (B) THREE (SUCH AMOUNT, THE "ACQUIRED
PERMITTED CAPITAL EXPENDITURE AMOUNT"); PROVIDED THAT, WITH RESPECT TO THE
FISCAL YEAR DURING WHICH ANY SUCH PERMITTED ACQUISITION OCCURS, THE AMOUNT OF
CAPITAL EXPENDITURES PERMITTED UNDER THE FIRST SENTENCE OF THIS SECTION 7.12
WITH RESPECT TO SUCH FISCAL YEAR SHALL BE INCREASED BY AN AMOUNT EQUAL TO THE
PRODUCT OF (X) THE ACQUIRED PERMITTED CAPITAL EXPENDITURE AMOUNT AND (Y) A
FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS REMAINING IN SUCH FISCAL
YEAR AND THE DENOMINATOR OF WHICH IS 365 OR