ACQUISITION, EACH PURCHASER SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE REQUIRED HOLDERS, (A) COPIES OF THE ACQUISITION
AGREEMENT AND RELATED AGREEMENTS AND INSTRUMENTS, AND ALL OPINIONS,
CERTIFICATES, LIEN SEARCH RESULTS AND OTHER DOCUMENTS REASONABLY REQUESTED BY
THE REQUIRED HOLDERS AND (B) AMENDMENTS TO THE SCHEDULES, TO THE EXTENT
NECESSARY TO MAKE THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AFTER GIVING EFFECT TO THE CONSUMMATION OF SUCH
PERMITTED ACQUISITION;
(XII)
AT THE TIME OF SUCH PERMITTED ACQUISITION AND
AFTER GIVING EFFECT THERETO, NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING; AND
(XIII)
AT THE TIME OF SUCH PERMITTED ACQUISITION AND
AFTER GIVING EFFECT THERETO, AT LEAST $4,000,000 IN AVAILABILITY WILL EXIST
UNDER THE REVOLVING CREDIT FACILITY PROVIDED UNDER THE SENIOR CREDIT AGREEMENT.
8.9
TRANSACTIONS WITH AFFILIATES.
EXCEPT (A) AS
EXPRESSLY PERMITTED BY THE SUBORDINATED NOTE DOCUMENTS, (B) AS OTHERWISE
DISCLOSED ON SCHEDULE 8.9 AND (C) FOR TRANSACTIONS THAT CONTAIN TERMS THAT ARE
NO LESS FAVORABLE TO THE APPLICABLE SPECIFIED COMPANY OR ANY SUBSIDIARY, AS THE
CASE MAY BE, THAN THOSE WHICH WOULD REASONABLY BE OBTAINED FROM A THIRD PARTY
NOT AN AFFILIATE OF ANY NOTE PARTY, NO SPECIFIED COMPANY WILL, OR WILL IT PERMIT
ANY SUBSIDIARY TO, DIRECTLY OR INDIRECTLY, ENTER INTO OR PERMIT TO EXIST ANY
TRANSACTION (INCLUDING THE PURCHASE, SALE, LEASE OR EXCHANGE OF ANY PROPERTY OR
THE RENDERING OF ANY SERVICE) WITH ANY AFFILIATE OF ANY SPECIFIED COMPANY OTHER
THAN ANOTHER NOTE PARTY; PROVIDED THAT NOTHING IN THIS SECTION 8.9 SHALL
PROHIBIT ANY SPECIFIED COMPANY OR ITS SUBSIDIARIES FROM ENGAGING IN THE
FOLLOWING TRANSACTIONS:
(I) THE PERFORMANCE OF SPECIFIED COMPANIES' OR ANY
SUBSIDIARY'S OBLIGATIONS UNDER ANY EMPLOYMENT CONTRACT, COLLECTIVE BARGAINING
AGREEMENT, EMPLOYEE BENEFIT PLAN, RELATED TRUST AGREEMENT OR ANY OTHER SIMILAR
ARRANGEMENT HERETOFORE OR HEREAFTER ENTERED INTO IN THE ORDINARY COURSE OF
BUSINESS, (II) THE PAYMENT OF COMPENSATION TO EMPLOYEES, OFFICERS, DIRECTORS
(OTHER THAN THE PAYMENT OF DIRECTORS' FEES TO DIRECTORS THAT ARE EMPLOYEES OF
ANY NOTE PARTY OR ANY OF THEIR AFFILIATES OR THAT ARE APPOINTED BY INVESTOR OR
ANY OF ITS AFFILIATES) OR NON-AFFILIATED CONSULTANTS IN THE ORDINARY COURSE OF
BUSINESS OR (III) THE MAINTENANCE OF BENEFIT PROGRAMS OR ARRANGEMENTS FOR
EMPLOYEES, OFFICERS OR DIRECTORS, INCLUDING, WITHOUT LIMITATION, VACATION PLANS,
HEALTH AND LIFE INSURANCE PLANS,
48
DEFERRED COMPENSATION PLANS, AND RETIREMENT OR SAVINGS PLANS AND SIMILAR PLANS,
IN EACH CASE, IN THE ORDINARY COURSE OF BUSINESS.
8.10
MODIFICATION OF ORGANIZATIONAL DOCUMENTS.
NO
SPECIFIED COMPANY WILL, OR WILL PERMIT ANY SUBSIDIARY TO, DIRECTLY OR
INDIRECTLY, AMEND OR OTHERWISE MODIFY ANY ORGANIZATIONAL DOCUMENTS OF SUCH
PERSON, EXCEPT FOR SUCH AMENDMENTS OR OTHER MODIFICATIONS FULLY DISCLOSED TO
EACH PURCHASER NO LATER THAN THE EFFECTIVE DATE OF SUCH AMENDMENT OR
MODIFICATION, AND WHICH AMENDMENTS OR MODIFICATIONS ARE EITHER (A) REQUIRED BY
LAW OR (B) COULD NOT REASONABLY BE CONSIDERED TO BE ADVERSE TO ANY PURCHASER.
8.11
MODIFICATION OF CERTAIN AGREEMENTS.
NO SPECIFIED
COMPANY WILL, OR WILL PERMIT ANY SUBSIDIARY TO, DIRECTLY OR INDIRECTLY, AMEND OR