EXTENT THEY
ARE PERMITTED UNDER SECTIONS 8.4(B) ("DIVIDENDS"), AND (Y) CASH DISTRIBUTIONS TO
MEMBERS OF THE BORROWER FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS OF THE
TAX SHARING AGREEMENT ("TAX DISTRIBUTIONS"), (II) PURCHASE, REDEEM OR OTHERWISE
ACQUIRE OR RETIRE FOR VALUE ANY CAPITAL STOCK OF THE BORROWER, (III) MAKE ANY
PRINCIPAL PAYMENT ON OR PURCHASE, DEFEASE, REDEEM, PREPAY, OR OTHERWISE ACQUIRE
OR RETIRE FOR VALUE, PRIOR TO ANY SCHEDULED FINAL MATURITY OR
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APPLICABLE REDEMPTION DATE, ANY PUBLIC NOTES OR PERMITTED UNSECURED DEBT (OR ANY
PERMITTED REFINANCING INDEBTEDNESS THEREOF) EXCEPT TO THE EXTENT SET FORTH IN
SECTION 8.11(I), (IV) MAKE ANY INVESTMENT NOT SPECIFICALLY PERMITTED BY CLAUSES
(A) THROUGH (P) OF SECTION 8.7 ("UNRESTRICTED INVESTMENTS") OR (V) MAKE ANY
CAPITAL EXPENDITURE EXCEPT TO THE EXTENT PERMITTED BY CLAUSES (A) THROUGH (C) OF
SECTION 9.1 (ANY OF THE FOREGOING DESCRIBED IN CLAUSES (I) - (V) BEING HEREAFTER
REFERRED TO AS A "RESTRICTED PAYMENT");
(B)
NOTWITHSTANDING THE LIMITATIONS ON
RESTRICTED PAYMENTS SET FORTH IN SECTION 8.4(A), SO LONG AS THERE IS NO DEFAULT
OR EVENT OF DEFAULT THEN OUTSTANDING OR THAT WOULD RESULT THEREFROM AND THE
BORROWER IS IN PRO FORMA COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH IN
SECTIONS 9.2 AND 9.3 BOTH BEFORE AND AFTER GIVING EFFECT TO SUCH RESTRICTED
PAYMENTS, THE BORROWER OR ANY WHOLLY-OWNED SUBSIDIARY OF THE BORROWER MAY MAKE
ANY RESTRICTED PAYMENT WHICH TOGETHER WITH ALL OTHER RESTRICTED PAYMENTS MADE
PURSUANT TO THIS SECTION 8.4 SINCE THE DATE HEREOF THAT ARE STILL OUTSTANDING
WOULD NOT EXCEED THE SUM OF:
(I)
$25,000,000, PLUS
(II)
50% OF THE CONSOLIDATED NET INCOME (OR, IN
THE CASE OF A CONSOLIDATED NET LOSS, MINUS 100% OF SUCH CONSOLIDATED NET LOSS)
OF THE BORROWER AND ITS SUBSIDIARIES ACCRUED DURING THE PERIOD (TREATED AS ONE
ACCOUNTING PERIOD) FROM APRIL 1, 2005 TO THE END OF THE MOST RECENT FISCAL
QUARTER FOR WHICH FINANCIAL STATEMENTS HAVE BEEN DELIVERED PURSUANT TO
SECTION 7.1, WITH CONSOLIDATED NET INCOME OR CONSOLIDATED NET LOSS BEING
ADJUSTED FOR EXTRAORDINARY ITEMS; PLUS
(III)
AVAILABLE EQUITY PROCEEDS.
(C)
NOTWITHSTANDING THE FOREGOING, THE BORROWER
MAY PAY DIVIDENDS WITHIN 60 DAYS AFTER THE DATE OF DECLARATION THEREOF IF AT
SUCH DATE OF DECLARATION SUCH DIVIDEND WOULD HAVE COMPLIED WITH THIS
SECTION 8.4; PROVIDED, HOWEVER, THAT SUCH DIVIDEND SHALL BE INCLUDED (WITHOUT
DUPLICATION) IN THE CALCULATION OF RESTRICTED PAYMENTS FOR PURPOSES OF
SECTION 8.4(A).
8.5
Certain Restrictions on Subsidiaries
The Borrower will not, and will not permit any of its Subsidiaries to create or
otherwise cause or permit to exist, or to become effective, any consensual
encumbrance or restriction (other than pursuant to the Loan Documents) on the
ability of any Subsidiary of the Borrower to (i) pay dividends or make any other
distributions on its Capital Stock, (ii) pay any Indebtedness or other
obligation owed to the Borrower or any of its other Subsidiaries, (iii) make any
loans or advances to the Borrower or any of its other Subsidiaries, or
(iv) transfer any of its property or assets to the Borrower