ENTER INTO AN AGREEMENT TO ACQUIRE, ANY INTEREST IN ANY
COMPANY OR BUSINESS (WHETHER BY A PURCHASE OF ASSETS, PURCHASE OF STOCK, MERGER,
AMALGAMATION, CONSOLIDATION OR OTHERWISE) OR ENTER INTO ANY JOINT VENTURE, IN
EACH CASE INVOLVING AN AGGREGATE CONSIDERATION (INCLUDING THE ASSUMPTION OF
LIABILITIES) EXCEEDING $4.0 MILLION IN THE AGGREGATE DURING ANY FISCAL YEAR
(INCLUDING IN THE CALCULATION OF THE AMOUNT OF ANY ACQUISITIONS FOR THE PURPOSE
OF THIS SECTION 4B(VII), THE AMOUNT OF ANY ACQUISITIONS MADE BY PARENT IN
ACCORDANCE WITH SECTION 3.3(V) OF THE PARENT GUARANTY DURING SUCH FISCAL YEAR);
(VIII)
ENGAGE TO ANY MATERIAL EXTENT IN ANY BUSINESS OTHER THAN
BUSINESSES OF THE TYPE CONDUCTED BY THE COMPANY AND THE SUBSIDIARIES ON THE DATE
OF THIS AGREEMENT AND BUSINESSES REASONABLY RELATED THERETO;
(IX)
BECOME SUBJECT TO (INCLUDING BY WAY OF AMENDMENT TO OR
MODIFICATION OF) ANY AGREEMENT OR INSTRUMENT WHICH BY ITS TERMS WOULD (UNDER ANY
CIRCUMSTANCES) RESTRICT (1) THE RIGHT OF ANY MEMBER OF THE COMPANY GROUP TO MAKE
LOANS OR ADVANCES OR PAY INTEREST TO, TRANSFER PROPERTY TO, OR REPAY ANY AMOUNTS
OWED TO ANY OTHER MEMBER OF THE COMPANY GROUP OR ANY PURCHASER OR (2) THE
ABILITY OF ANY MEMBER OF THE COMPANY GROUP TO PERFORM THE MATERIAL PROVISIONS OF
THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION AGREEMENTS (INCLUDING PROVISIONS
RELATING TO THE REDEMPTION OF THE NOTES AND REPAYMENT OF THE PRINCIPAL AMOUNT
OF, AND INTEREST ON, THE NOTES); PROVIDED THAT THE FOREGOING SHALL NOT APPLY TO
(A) RESTRICTIONS AND CONDITIONS IMPOSED BY LAW, THE TRANSACTION AGREEMENTS OR
THE ACQUISITION AGREEMENT, (B) CUSTOMARY RESTRICTIONS AND CONDITIONS CONTAINED
IN AGREEMENTS RELATING TO THE SALE OR DISPOSITION OF A SUBSIDIARY PENDING SUCH
SALE OR DISPOSITION, PROVIDED SUCH RESTRICTIONS AND CONDITIONS APPLY ONLY TO THE
SUBSIDIARY THAT IS TO BE SOLD OR DISPOSED AND SUCH SALE OR DISPOSITION IS
PERMITTED HEREUNDER, (C) RESTRICTIONS OR CONDITIONS IMPOSED BY THE LENDER(S)
UNDER ANY AGREEMENT
16
GOVERNING ANY SENIOR DEBT AND (D) CUSTOMARY PROVISIONS IN LEASES AND OTHER
CONTRACTS RESTRICTING THE ASSIGNMENT THEREOF;
(X)
IN THE CASE OF THE COMPANY ONLY, EFFECT A RECAPITALIZATION OR
REORGANIZATION IN ANY FORM OF TRANSACTION INTO A LIMITED LIABILITY COMPANY, A
PARTNERSHIP OR ANY OTHER NON-CORPORATE ENTITY, OR OTHERWISE BECOME, AN ENTITY
THAT IS TREATED AS A PARTNERSHIP FOR FEDERAL INCOME TAX PURPOSES;
(XI)
CHANGE ITS FISCAL YEAR;
(XII)
INCUR ANY SENIOR DEBT THAT IS SUBORDINATED TO OTHER SENIOR DEBT,
OTHER THAN SECOND-LIEN SENIOR INDEBTEDNESS HAVING CUSTOMARY TERMS FOR
INDEBTEDNESS OF SUCH TYPE AND THAT IS SUBORDINATED ONLY TO FIRST-LIEN
INDEBTEDNESS THAT IS INCURRED CONTEMPORANEOUSLY WITH SUCH SECOND-LIEN
INDEBTEDNESS OR THAT REFINANCES OR REPLACES SUCH FIRST-LIEN INDEBTEDNESS; OR
(XIII)
GRANT OR PERMIT ANY LIEN ON ANY OF ITS ASSETS, OTHER THAN
PERMITTED LIENS.
4C.
Affirmative Covenants.
The Company will, and will cause its
Subsidiaries to, take all of the following actions, unless otherwise waived with
the prior authorization and approval of the Majority Noteholders:
(I)
MAINTAIN AND KEEP THEIR RESPECTIVE PROPERTIES IN GOOD REPAIR,
WORKING ORDER AND CONDITION (OTHER THAN ORDINARY