the Purchaser under this Agreement and the other Investment Documents,
including, all fees, expenses and amounts due at such time in respect of
indemnity obligations under Article 7, the Company hereby covenants and agrees
with the Purchaser as follows (unless otherwise agreed by the Required
Purchasers):
9.01
FUNDAMENTAL CHANGES; CONSOLIDATIONS, MERGERS AND
ACQUISITIONS.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY GROUP MEMBER TO,
DIRECTLY OR INDIRECTLY:
(A) AMEND, MODIFY OR WAIVE ANY TERM OR PROVISION OF ITS
ARTICLES OF INCORPORATION, CERTIFICATE OF DESIGNATION (OR CORPORATE CHARTER OR
OTHER SIMILAR ORGANIZATIONAL DOCUMENT) OPERATING AGREEMENT OR BY-LAWS (OR OTHER
SIMILAR DOCUMENT) IN ANY MANNER ADVERSE TO THE INTERESTS OF THE PURCHASER
HEREUNDER OR UNDER ANY OF THE OTHER INVESTMENT DOCUMENTS, UNLESS REQUIRED BY
LAW; (B) ENTER INTO ANY TRANSACTION OF MERGER OR CONSOLIDATION; (C) LIQUIDATE,
WIND-UP OR DISSOLVE ITSELF (OR SUFFER ANY LIQUIDATION OR DISSOLUTION); (D)
ACQUIRE BY PURCHASE OR OTHERWISE ALL OR ANY SUBSTANTIAL PART OF THE BUSINESS OR
ASSETS OF ANY OTHER PERSON; OR (E) CHANGE ITS FISCAL YEAR; PROVIDED, HOWEVER,
(1) ANY SUBSIDIARY GUARANTOR MAY MERGE WITH ANY OTHER SUBSIDIARY GUARANTOR OR
THE COMPANY AND (2) ANY SUBSIDIARY GUARANTOR MAY WIND-UP INTO THE COMPANY OR ANY
OTHER SUBSIDIARY GUARANTOR.
9.02
TRANSACTIONS WITH AFFILIATES.
THE COMPANY SHALL
NOT, AND SHALL NOT PERMIT ANY GROUP MEMBER TO (A) ENTER INTO ANY TRANSACTION OR
AGREEMENT OR OTHER CONTRACTUAL OBLIGATION WITH, OR MAKE ANY PAYMENT WHETHER OR
NOT IN THE ORDINARY COURSE OF BUSINESS TO, ANY AFFILIATE, (B) AMEND OR TERMINATE
ANY EXISTING AGREEMENT WITH ANY AFFILIATE, (C) PURCHASE FROM OR PROVIDE TO AN
AFFILIATE ANY SELLING, GENERAL, MANAGEMENT OR ADMINISTRATIVE SERVICES, EXCEPT AS
PERMITTED
42
BY SECTION 9.13, (D) DIRECTLY OR INDIRECTLY MAKE ANY SALES TO OR PURCHASES FROM
AN AFFILIATE, OR (E) INCREASE THE COMPENSATION BEING PAID TO AN AFFILIATE;
EXCEPT (I) PURSUANT TO THE REASONABLE REQUIREMENTS OF ITS BUSINESS, (II) UPON
FAIR AND REASONABLE TERMS, (III) AS TO EACH SUCH TRANSACTION IN EXCESS OF
$500,000, UPON 10 DAYS' PRIOR WRITTEN NOTICE TO THE PURCHASERS PRIOR TO THE
CONSUMMATION THEREOF, AND (IV) IN EACH CASE ON TERMS THAT ARE NO LESS FAVORABLE
TO IT THAN IT WOULD OBTAIN IN A COMPARABLE ARM'S LENGTH TRANSACTION WITH A
PERSON NOT ITS AFFILIATE.
THE FOREGOING SHALL NOT APPLY TO:
(A)
ANY EMPLOYMENT AGREEMENTS, NON-COMPETITION AGREEMENTS, STOCK
PURCHASE OR OPTION AGREEMENTS, COLLECTIVE BARGAINING AGREEMENTS, EMPLOYEE
BENEFIT PLANS OR ARRANGEMENTS (INCLUDING VACATION PLANS, HEALTH AND LIFE
INSURANCE PLANS, DEFERRED COMPENSATION PLANS, STOCK LOAN PLANS, DIRECTORS' AND
OFFICERS' INDEMNIFICATION AGREEMENTS AND RETIREMENT, SAVINGS OR SIMILAR PLANS),
RELATED TRUST AGREEMENTS OR ANY SIMILAR ARRANGEMENTS, IN EACH CASE IN RESPECT OF
EMPLOYEES, OFFICERS OR DIRECTORS AND ENTERED INTO IN THE ORDINARY COURSE OF
BUSINESS, ON CUSTOMARY TERMS AND CONSISTENT WITH PAST PRACTICE, ANY PAYMENTS OR
OTHER TRANSACTIONS CONTEMPLATED BY ANY OF THE FOREGOING AND ANY OTHER PAYMENTS
OF COMPENSATION TO EMPLOYEES, OFFICERS, OR DIRECTORS IN THE ORDINARY COURSE OF
BUSINESS, ON CUSTOMARY TERMS AND CONSISTENT WITH PAST PRACTICE;
(B)
TRANSACTIONS BETWEEN OR AMONG THE COMPANY AND/OR