prior written consent of the holders of a majority of the Series C Shares (other
than with respect to Section 8.1(e) which shall require the prior written
consent of the holders of a majority of the Underlying Common Stock), the
Company shall not, nor shall the Company suffer or permit any member of the
Company Group to, directly or indirectly:
(A)
USE THE PROCEEDS FROM THE SALE OF THE
SERIES C SHARES AND THE WARRANTS HEREUNDER OTHER THAN (X)(I) TO PAYOFF THE
INDEBTEDNESS OF THE COMPANY AND ITS SUBSIDIARIES OUTSTANDING UNDER THE
SUBORDINATED NOTES, AND (II) TO PAY THE CLOSING FEE AND OTHER FEES AND EXPENSES
ASSOCIATED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE RELATED
DOCUMENTS, (Y) TO THE EXTENT THE COMPANY HAS PAID IN FULL THE INDEBTEDNESS OF
THE COMPANY AND ITS SUBSIDIARIES UNDER THE SUBORDINATED NOTES AND THE CLOSING
FEE,
(I) FOR PERMITTED ACQUISITIONS AND (II) FOR WORKING CAPITAL AND GENERAL
CORPORATE PURPOSES;
29
(B)
PRIOR TO THE THIRD ANNIVERSARY OF THE
CLOSING DATE, CONSUMMATE A COMPANY SALE UNLESS THE AMOUNT OF CASH CONSIDERATION
AND THE MARKET PRICE (AS OF THE DATE OF RECEIPT) OF ANY OTHER CONSIDERATION
RECEIVED BY THE HOLDERS OF THE UNDERLYING COMMON STOCK, IN THE AGGREGATE, IN
SUCH COMPANY SALE, PLUS THE AGGREGATE VALUE OF ANY CASH HEREAFTER DISTRIBUTED OR
ISSUED AS A DIVIDEND OR DISTRIBUTION WITH RESPECT TO ANY OF THE SECURITIES IS
EQUAL TO 175% OF THE AGGREGATE AMOUNT OF CAPITAL INVESTED IN THE SECURITIES;
(C)
INCUR, CREATE, ASSUME OR IN ANY WAY BECOME
LIABLE FOR ANY INDEBTEDNESS FOR BORROWED MONEY, CAPITAL LEASES OR GUARANTEES
UNLESS AT THE TIME OF AND AFTER GIVING PRO FORMA EFFECT TO SUCH INCURRENCE AND
THE APPLICATION OF PROCEEDS THEREFROM, THE RATIO OF THE COMPANY'S INDEBTEDNESS
FOR BORROWED MONEY TO EBITDA WOULD BE LESS THAN OR EQUAL TO 2.0 TO 1.0.
SOLELY
FOR PURPOSES OF THIS SECTION 8.1(C), (X) INDEBTEDNESS FOR BORROWED MONEY SHALL
MEAN ALL OBLIGATIONS OF THE COMPANY GROUP FOR BORROWED MONEY WHICH SHOULD BE
CLASSIFIED UPON THE OBLIGOR'S BALANCE SHEET AS LIABILITIES, THE PRESENT VALUE OF
ANY CAPITAL LEASES AND THE AMOUNT OF ALL GUARANTEES (WHETHER OR NOT REQUIRED TO
BE REFLECTED ON SUCH OBLIGOR'S BALANCE SHEET AS LIABILITIES), IN EACH CASE AS
DETERMINED IN ACCORDANCE WITH GAAP, AND (Y) EBITDA SHALL MEAN THE NET INCOME OF
THE COMPANY GROUP, (A) ADJUSTED FOR THE ELIMINATION OF THE FOLLOWING ITEMS IF,
AND ONLY IF, SUCH ITEMS SHALL NEVER REQUIRE THE EXPENDITURE OF CASH BY ANY
MEMBER OF THE COMPANY GROUP: (1) NON-CASH INTEREST; (2) NON-CASH EMPLOYEE
COMPENSATION EXPENSE AND (3) NONRECURRING NON-CASH CHARGES, (B) MINUS ANY
EXTRAORDINARY GAINS AND OTHER NON-RECURRING GAINS AND (C) PLUS TO THE EXTENT
DEDUCTED FROM NET INCOME (1) INCOME TAX EXPENSE; (2) DEPRECIATION AND
AMORTIZATION EXPENSE AND (3) THE AGGREGATE CASH INTEREST EXPENSE OF THE COMPANY
GROUP PAID, PAYABLE OR ACCRUED FOR SUCH PERIOD, ALL OF WHICH CALCULATIONS SHALL
BE DETERMINED IN ACCORDANCE WITH GAAP BASED ON THE CONSOLIDATED FINANCIAL
STATEMENTS OF THE COMPANY GROUP FOR THE