PAYMENTS PURSUANT TO THE TERMS OF THE SENIOR SUBORDINATED NOTE
DOCUMENTS AS IN EFFECT ON THE CLOSING DATE;
(C)
BORROWER MAY REIMBURSE REASONABLE
OUT-OF-POCKET EXPENSES PAYABLE TO STOCKHOLDERS OF THE BORROWER; PROVIDED,THAT NO
DEFAULT OR EVENT OF DEFAULT EXISTS AT THE TIME OF ANY SUCH RESTRICTED PAYMENT OR
WOULD OCCUR AS A RESULT THEREOF; AND
(D)
BORROWER MAY REPURCHASE STOCK OWNED BY
EMPLOYEES OF BORROWER OR ITS AFFILIATES WHOSE EMPLOYMENT WITH BORROWER OR ITS
AFFILIATES HAS BEEN TERMINATED, PROVIDED,THAT SUCH PAYMENTS SHALL NOT EXCEED
$500,000 IN ANY FISCAL YEAR OR $2,500,000 DURING THE TERM OF THIS AGREEMENT AND
PROVIDED, FURTHER, THAT NO EVENT OF DEFAULT EXISTS AT THE TIME OF SUCH
RESTRICTED PAYMENT OR WOULD OCCUR AS A RESULT THEREOF.
3.6
RESTRICTION ON FUNDAMENTAL CHANGES.
THE
CREDIT PARTIES SHALL NOT AND SHALL NOT CAUSE OR PERMIT THEIR SUBSIDIARIES TO
DIRECTLY OR INDIRECTLY:
(A) AMEND, MODIFY OR WAIVE ANY TERM OR PROVISION OF ITS
ORGANIZATIONAL DOCUMENTS, INCLUDING ITS ARTICLES OF INCORPORATION, CERTIFICATES
OF DESIGNATIONS PERTAINING TO PREFERRED STOCK, BY-LAWS, PARTNERSHIP AGREEMENT OR
OPERATING AGREEMENT UNLESS REQUIRED BY LAW OR UNLESS DOING SO WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT; (B) CONSUMMATE ANY TRANSACTION OF MERGER OR
CONSOLIDATION EXCEPT, UPON NOT LESS THAN FIVE (5) BUSINESS DAYS PRIOR WRITTEN
NOTICE TO AGENT, ANY WHOLLY-OWNED SUBSIDIARY OF BORROWER MAY BE MERGED WITH OR
INTO BORROWER (PROVIDED, THAT BORROWER IS THE SURVIVING ENTITY) OR ANY OTHER
WHOLLY-OWNED SUBSIDIARY OF BORROWER; (C) LIQUIDATE, WIND-UP OR DISSOLVE ITSELF
(OR SUFFER ANY LIQUIDATION OR DISSOLUTION); OR (D) ACQUIRE BY PURCHASE OR
OTHERWISE ALL OR ANY SUBSTANTIAL PART OF THE BUSINESS OR ASSETS OF ANY OTHER
PERSON.
3.7
DISPOSAL OF ASSETS OR SUBSIDIARY STOCK.
THE
CREDIT PARTIES SHALL NOT AND SHALL NOT CAUSE OR PERMIT THEIR SUBSIDIARIES TO
DIRECTLY OR INDIRECTLY CONVEY, SELL, LEASE (AS LESSOR), SUBLEASE (AS SUBLESSOR),
TRANSFER OR OTHERWISE DISPOSE OF, OR GRANT ANY PERSON AN OPTION TO ACQUIRE, IN
ONE TRANSACTION OR A SERIES OF RELATED TRANSACTIONS, ANY OF ITS PROPERTY,
BUSINESS OR ASSETS, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT FOR
(A) SALES OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS
30
AND DISPOSITIONS OF WORN OUT OR OBSOLETE EQUIPMENT, FIXTURES OR REAL ESTATE NOT
USED OR USEFUL IN THE BUSINESS, (B) ASSET DISPOSITIONS BY BORROWER AND ITS
SUBSIDIARIES (EXCLUDING SALES OF ACCOUNTS AND STOCK OF ANY OF SUBSIDIARIES) IF
ALL OF THE FOLLOWING CONDITIONS ARE MET:
(I)
THE AGGREGATE MARKET VALUE OF
ASSETS SOLD OR OTHERWISE DISPOSED OF IN ANY FISCAL YEAR DOES NOT EXCEED
$25,000,000; (II) THE CONSIDERATION RECEIVED IS AT LEAST EQUAL TO THE FAIR
MARKET VALUE OF SUCH ASSETS; (III) AT LEAST 75% OF THE CONSIDERATION RECEIVED IS
CASH; (IV) THE NET PROCEEDS OF SUCH ASSET DISPOSITION ARE APPLIED AS REQUIRED BY
SECTION 1.5(B); AND (V) NO DEFAULT OR EVENT OF DEFAULT THEN EXISTS OR WOULD
RESULT FROM SUCH ASSET DISPOSITION, (C) SALES, LEASES, TRANSFERS OR OTHER
DISPOSITIONS OF ASSETS BY ANY SUBSIDIARY TO BORROWER OR ANY OTHER CREDIT PARTY,
(D) SALES, LEASES, TRANSFERS OR OTHER DISPOSITIONS CONSTITUTING