INCORPORATION, CERTIFICATE OF FORMATION (INCLUDING,
WITHOUT LIMITATION, BY THE FILING OR MODIFICATION OF ANY CERTIFICATE OF
DESIGNATION), BY-LAWS, LIMITED LIABILITY COMPANY AGREEMENT, PARTNERSHIP
AGREEMENT (OR EQUIVALENT ORGANIZATIONAL DOCUMENTS) OR ANY AGREEMENT ENTERED INTO
BY IT WITH RESPECT TO ITS CAPITAL STOCK OR MEMBERSHIP INTERESTS (OR EQUIVALENT
EQUITY INTERESTS) (INCLUDING ANY SHAREHOLDERS' AGREEMENT), OR ENTER INTO ANY NEW
AGREEMENT WITH RESPECT TO ITS CAPITAL STOCK OR MEMBERSHIP INTERESTS (OR
EQUIVALENT INTERESTS), OTHER THAN ANY AMENDMENTS, MODIFICATIONS OR CHANGES OR
ANY SUCH NEW AGREEMENTS WHICH ARE NOT IN ANY WAY MATERIALLY ADVERSE TO THE
INTERESTS OF THE LENDERS.
(B)
THE BORROWER WILL NOT, AND WILL NOT PERMIT
ANY SUBSIDIARY TO, AMEND OR MODIFY, OR PERMIT THE AMENDMENT OR MODIFICATION OF,
ANY PROVISION OF ANY SENIOR NOTE DOCUMENT, EXCEPT THAT THE BORROWER AND ITS
SUBSIDIARIES MAY AMEND OR MODIFY THE SENIOR NOTE INDENTURE SO LONG AS SUCH
AMENDMENT OR MODIFICATION IS MADE PURSUANT TO SECTION 3.1 OF THE SENIOR NOTE
INDENTURE AND DOES NOT REQUIRE THE CONSENT OF THE SECURITYHOLDERS (AS DEFINED IN
THE SENIOR NOTE INDENTURE).
(C)
THE BORROWER WILL NOT MAKE (OR GIVE ANY
NOTICE IN RESPECT OF) ANY VOLUNTARY OR OPTIONAL PAYMENT (EXCLUDING, FOR
AVOIDANCE OF DOUBT, ANY PAYMENT OF REGULARLY ACCRUING INTEREST ON ANY SENIOR
NOTES) OR OPTIONAL PREPAYMENT ON OR OPTIONAL REDEMPTION, OPTIONAL REPURCHASE OR
ACQUISITION FOR VALUE OF (INCLUDING, WITHOUT LIMITATION, BY WAY OF DEPOSITING
WITH THE TRUSTEE WITH RESPECT THERETO OR ANY OTHER PERSON MONEY OR SECURITIES
BEFORE DUE FOR THE
43
PURPOSE OF PAYING WHEN DUE) OF ANY SENIOR NOTES, EXCEPT THAT THE BORROWER MAY
MAKE A VOLUNTARY OR OPTIONAL PREPAYMENT ON THE SENIOR NOTES, SO LONG AS NO
DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING (OR WOULD ARISE AFTER
GIVING EFFECT THERETO) (X) IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED THE
GREATER OF (X) 10% OF THE INITIAL AGGREGATE PRINCIPAL AMOUNT OF THE SENIOR NOTES
(I.E., $25,000,000) OR (Y) 50% OF THE CONSOLIDATED NET INCOME FOR THE PERIOD
(TREATED AS ONE ACCOUNTING PERIOD) FROM THE INITIAL BORROWING DATE TO THE END OF
THE MOST RECENT FISCAL QUARTER ENDING PRIOR TO THE DATE OF SUCH PAYMENT;
PROVIDED THAT (A) PRIOR TO (AND AFTER GIVING EFFECT TO SUCH PREPAYMENT) THE
LEVERAGE RATIO FOR THE BORROWER SHALL BE LESS THAN 0.45:1.00 AND (B) THE SENIOR
IMPLIED RATING FOR THE BORROWER (WITH STABLE OUTLOOK) IS NO LESS THAN "BB" FROM
S&P AND "BA3" FROM MOODY'S.
Notwithstanding the foregoing provisions of this Section 9.12, upon not less
than 30 days prior written notice to the Administrative Agent and so long as no
Default or Event of Default exists and is continuing, any Subsidiary Guarantor
may change its jurisdiction of organization to another jurisdiction reasonably
satisfactory to the Administrative Agent, provided that such Subsidiary
Guarantor shall promptly take all actions reasonably deemed necessary by the
Collateral Agent to preserve, protect and maintain, without interruption, the
security interest and Lien of the Collateral Agent in any Collateral owned by
such Subsidiary Guarantor to the satisfaction of