THAN
FORTY-FIVE (45) DAYS AFTER THE END OF EACH OF THE FIRST THREE FISCAL QUARTERS OF
EACH FISCAL YEAR OF THE GUARANTOR AND NOT LATER THAN NINETY (90) DAYS AFTER THE
END OF EACH FISCAL YEAR OF THE GUARANTOR.
THE ANNUAL FULL FISCAL YEAR FINANCIAL
STATEMENTS REQUIRED TO BE DELIVERED IN ACCORDANCE WITH THIS SECTION 7.3(B) SHALL
BE AUDITED BY A REPUTABLE INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM.
(C)
IF THE COMPANY AND/OR THE GUARANTOR INTENDS TO FILE ITS ANNUAL AND
QUARTERLY INFORMATION WITH THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") IN ELECTRONIC FORM PURSUANT TO REGULATION S-T OF THE COMMISSION
USING THE COMMISSION'S ELECTRONIC DATA GATHERING, ANALYSIS AND RETRIEVAL
("EDGAR") SYSTEM, THE COMPANY AND/OR THE GUARANTOR SHALL NOTIFY THE TRUSTEE IN
THE MANNER PRESCRIBED HEREIN OF EACH SUCH ANNUAL AND QUARTERLY FILING.
THE
TRUSTEE IS HEREBY AUTHORIZED AND DIRECTED TO ACCESS THE EDGAR SYSTEM FOR
PURPOSES OF RETRIEVING THE FINANCIAL INFORMATION SO FILED.
COMPLIANCE WITH THE
FOREGOING SHALL CONSTITUTE DELIVERY BY THE COMPANY AND THE GUARANTOR OF ITS
FINANCIAL STATEMENTS TO THE TRUSTEE IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 314(A) OF THE TRUST INDENTURE ACT, IF APPLICABLE.
THE TRUSTEE SHALL
HAVE NO DUTY TO SEARCH FOR OR OBTAIN ANY ELECTRONIC OR OTHER FILINGS THAT THE
COMPANY AND/OR THE GUARANTOR MAKES WITH THE COMMISSION, REGARDLESS OF WHETHER
SUCH FILINGS ARE PERIODIC, SUPPLEMENTAL OR OTHERWISE.
DELIVERY OF REPORTS,
INFORMATION AND DOCUMENTS TO THE TRUSTEE PURSUANT TO THIS SECTION 7.3(C) SHALL
BE SOLELY FOR PURPOSES OF COMPLIANCE WITH THIS SECTION 7.3(C) AND, IF
APPLICABLE, WITH SECTION 314(A) OF THE TRUST INDENTURE ACT.
THE TRUSTEE'S
RECEIPT OF SUCH REPORTS, INFORMATION AND DOCUMENTS SHALL NOT CONSTITUTE NOTICE
TO IT OF THE CONTENT THEREOF OR ANY MATTER DETERMINABLE FROM THE CONTENT
THEREOF, INCLUDING THE COMPANY'S AND/OR THE GUARANTOR'S COMPLIANCE WITH ANY OF
ITS COVENANTS HEREUNDER, AS TO WHICH THE TRUSTEE IS ENTITLED TO RELY UPON
OFFICERS' CERTIFICATES.
(D)
FOR PURPOSES OF THIS SECTION 7.3, "COLLATERAL MANAGER" MEANS,
INITIALLY, TABERNA CAPITAL MANAGEMENT, LLC, HAVING AN ADDRESS AT 450 PARK
AVENUE, NEW YORK, NEW YORK 10022, ATTN: RAFAEL LICHT (OR SUCH OTHER ADDRESS AND
NOTICE PARTY SO DESIGNATED BY TABERNA CAPITAL MANAGEMENT, LLC, AND, AFTER
WRITTEN NOTICE DELIVERED TO THE TRUSTEE AND THE COMPANY BY HOLDERS OWNING A
MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF OUTSTANDING SECURITIES, SUCH SUCCESSOR
REPRESENTATIVE OF THE HOLDERS SO DESIGNATED IN SUCH NOTICE; PROVIDED THAT THERE
SHALL ONLY BE ONE SUCH HOLDER'S REPRESENTATIVE AT ANY ONE TIME).
51
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1
COMPANY MAY CONSOLIDATE,
ETC. ONLY ON CERTAIN
TERMS.
(A)
THE COMPANY SHALL NOT CONSOLIDATE WITH OR MERGE INTO ANY OTHER
PERSON OR CONVEY, TRANSFER OR LEASE ITS PROPERTIES AND ASSETS SUBSTANTIALLY AS
AN ENTIRETY TO ANY PERSON, AND NO PERSON SHALL CONSOLIDATE WITH OR MERGE INTO
THE COMPANY OR CONVEY, TRANSFER OR LEASE ITS PROPERTIES AND ASSETS SUBSTANTIALLY
AS AN ENTIRETY TO THE COMPANY, UNLESS:
(I)
IF THE COMPANY SHALL CONSOLIDATE WITH OR MERGE INTO ANOTHER
PERSON OR CONVEY, TRANSFER OR LEASE ITS PROPERTIES