AND TO
PARTICIPATE IN EACH TELEPHONIC MEETING OF SUCH BOARD OF DIRECTORS CONDUCTED IN
ACCORDANCE WITH THE BY-LAWS OF THE COMPANY AND APPLICABLE LAW.
THE NON-VOTING
OBSERVER SHALL BE ENTITLED TO REIMBURSEMENT FOR REASONABLE OUT-OF-POCKET
EXPENSES INCURRED IN CONNECTION WITH SUCH ATTENDANCE.
THE NON-VOTING OBSERVER
WILL BE ENTITLED TO RECEIVE ALL DOCUMENTS, NOTICES, WRITTEN MATERIALS AND OTHER
INFORMATION GIVEN TO DIRECTORS IN CONNECTION WITH SUCH MEETINGS (COLLECTIVELY,
"MATERIAL") AS IF SUCH NON-VOTING OBSERVER WERE A DIRECTOR AT THE SAME TIME SUCH
MATERIALS AND INFORMATION ARE GIVEN TO THE DIRECTORS, WHETHER OR NOT THE
NON-VOTING OBSERVER IS ATTENDING THE BOARD MEETING.
IF THE COMPANY PROPOSES TO
TAKE ANY ACTION BY WRITTEN CONSENT IN LIEU OF A MEETING OF ITS BOARD OF
DIRECTORS, THE COMPANY SHALL FORWARD THE FORM OF SUCH WRITTEN CONSENT TO THE
NON-VOTING OBSERVER PRIOR TO ITS EXECUTION AND AT THE SAME TIME AS IT IS
FORWARDED TO ITS BOARD OF DIRECTORS.
NOTWITHSTANDING THE FOREGOING, THE
NON-VOTING OBSERVER SHALL NOT BE ENTITLED TO ATTEND ANY MEETING OF THE BOARD OF
DIRECTORS OF THE COMPANY OR RECEIVE ANY MATERIAL (1) TO THE EXTENT THAT ANY
ATTORNEY-CLIENT PRIVILEGE WOULD BE WAIVED BY SUCH ATTENDANCE OR RECEIPT OF SUCH
MATERIAL (BUT ONLY WITH RESPECT TO THE PORTION OF SUCH MEETING OR SUCH MATERIAL
THAT WOULD REASONABLY BE EXPECTED TO RESULT IN SUCH WAIVER), (2) TO THE EXTENT
NECESSARY TO PROTECT ANY PROPRIETARY INFORMATION IN THE ABSENCE OF A
CONFIDENTIALITY AGREEMENT IN FORM AND SUBSTANCE ACCEPTABLE TO THE COMPANY IN ITS
REASONABLE DISCRETION AND (3) WHERE THERE IS OR WOULD REASONABLY BE EXPECT TO BE
A CONFLICT OF INTEREST.
34
ARTICLE VIII
NEGATIVE COVENANTS
Each of the Note Parties covenants and agrees, for so long as any of the Notes
is outstanding, to observe and abide by each of the covenants and agreements
contained in this Article VIII.
8.1
DEBT.
NO SPECIFIED COMPANY WILL, OR WILL
PERMIT ANY SUBSIDIARY TO, DIRECTLY OR INDIRECTLY, CREATE, INCUR, ASSUME,
GUARANTEE OR OTHERWISE BECOME OR REMAIN DIRECTLY OR INDIRECTLY LIABLE WITH
RESPECT TO, ANY DEBT (OR PAYABLES AND OTHER OBLIGATIONS OWING AMONG ANY OF THE
NOTE PARTIES), EXCEPT FOR:
(A)
DEBT UNDER THE SENIOR FINANCING DOCUMENTS;
PROVIDED THAT THE AGGREGATE PRINCIPAL AMOUNT OF SENIOR DEBT (OTHER THAN WITH
RESPECT TO SWAP CONTRACTS) SHALL NOT EXCEED $77,000,000, AS SUCH AGGREGATE
PRINCIPAL AMOUNT IS REDUCED BY (I) ACTUAL PAID PRINCIPAL INSTALLMENTS OF ANY
TERM LOAN UNDER THE SENIOR CREDIT AGREEMENT AND (II) ANY REPAYMENT OF REVOLVING
LOANS UNDER THE SENIOR CREDIT AGREEMENT TO THE EXTENT MADE IN CONNECTION WITH A
PERMANENT REDUCTION OF ANY REVOLVING CREDIT COMMITMENT UNDER THE SENIOR CREDIT
AGREEMENT (EXCLUDING ANY SUCH REPAYMENT OR REDUCTION OCCURRING BY REASON OF A
REFINANCING THEREOF, IN AN AMOUNT UP TO THE AGGREGATE PRINCIPAL AMOUNT OF TERM
LOANS AND/OR REVOLVING CREDIT COMMITMENTS BORROWED OR PROVIDED, AS APPLICABLE,
IN SUCH REFINANCING); PROVIDED FURTHER THAT, NOTWITHSTANDING ANY REDUCTION
PURSUANT TO THE FOREGOING CLAUSES (I) AND (II), UP TO $15,000,000 OF SENIOR DEBT
CONSTITUTING DEBT WITH RESPECT TO A REVOLVING CREDIT FACILITY