WRITE-DOWNS OR WRITE-OFFS OF
SUCH INVESTMENTS, LOANS AND ADVANCES) DOES NOT EXCEED $7,500,000 IN THE
AGGREGATE (PLUS ANY RETURNS OF CAPITAL ACTUALLY RECEIVED BY THE BORROWER OR THE
SUBSIDIARY INVESTOR IN RESPECT OF INVESTMENTS THERETOFORE MADE BY IT PURSUANT TO
THIS PARAGRAPH (H)).
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS. (A)
MERGE INTO OR CONSOLIDATE WITH ANY OTHER PERSON, OR PERMIT ANY OTHER PERSON TO
MERGE INTO OR CONSOLIDATE WITH IT, OR SELL, TRANSFER, LEASE OR OTHERWISE DISPOSE
OF (IN ONE TRANSACTION OR IN A SERIES OF TRANSACTIONS) ALL OR SUBSTANTIALLY ALL
THE ASSETS (WHETHER NOW OWNED OR HEREAFTER ACQUIRED) OF THE BORROWER OR LESS
THAN ALL THE EQUITY INTERESTS OF ANY SUBSIDIARY, OR PURCHASE, LEASE OR OTHERWISE
ACQUIRE (IN ONE TRANSACTION OR A SERIES OF
51
TRANSACTIONS) ALL OR ANY SUBSTANTIAL PART OF THE ASSETS OF ANY OTHER PERSON,
EXCEPT THAT (I) THE BORROWER AND ANY SUBSIDIARY MAY PURCHASE AND SELL INVENTORY
IN THE ORDINARY COURSE OF BUSINESS AND (II) IF AT THE TIME THEREOF AND
IMMEDIATELY AFTER GIVING EFFECT THERETO NO EVENT OF DEFAULT OR DEFAULT SHALL
HAVE OCCURRED AND BE CONTINUING (X) ANY SUBSIDIARY MAY MERGE INTO THE BORROWER
OR A WHOLLY OWNED SUBSIDIARY IN A TRANSACTION IN WHICH THE SURVIVING ENTITY IS
THE BORROWER OR A WHOLLY OWNED SUBSIDIARY AND NO PERSON OTHER THAN THE BORROWER
OR A WHOLLY OWNED SUBSIDIARY RECEIVES ANY CONSIDERATION (PROVIDED THAT IF ANY
PARTY TO ANY SUCH TRANSACTION IS A LOAN PARTY, THE SURVIVING ENTITY OF SUCH
TRANSACTION SHALL BE A LOAN PARTY) AND (Y) THE BORROWER AND THE SUBSIDIARIES
MAY MAKE INVESTMENTS AND ACQUISITIONS PERMITTED BY SECTION 6.04.
(B)
MAKE ANY ASSET SALE NOT OTHERWISE PERMITTED UNDER PARAGRAPH (A) ABOVE
UNLESS (I) SUCH ASSET SALE IS FOR CONSIDERATION AT LEAST 75% OF WHICH IS CASH OR
CASH EQUIVALENTS PROMPTLY CONVERTED TO CASH, (II) SUCH CONSIDERATION IS AT LEAST
EQUAL TO THE FAIR MARKET VALUE OF THE ASSETS BEING SOLD, TRANSFERRED, LEASED OR
DISPOSED OF AND (III) THE FAIR MARKET VALUE OF ALL ASSETS SOLD, TRANSFERRED,
LEASED OR DISPOSED OF PURSUANT TO THIS PARAGRAPH (B) SHALL NOT EXCEED
(I) $3,000,000 IN ANY FISCAL YEAR OR (II) $15,000,000 IN THE AGGREGATE.
SECTION 6.06. RESTRICTED PAYMENTS; RESTRICTIVE AGREEMENTS. (A)
DECLARE OR MAKE,
OR AGREE TO DECLARE OR MAKE, DIRECTLY OR INDIRECTLY, ANY RESTRICTED PAYMENT
(INCLUDING PURSUANT TO ANY SYNTHETIC PURCHASE AGREEMENT), OR INCUR ANY
OBLIGATION (CONTINGENT OR OTHERWISE) TO DO SO; PROVIDED, HOWEVER, THAT (I) ANY
SUBSIDIARY MAY DECLARE AND PAY DIVIDENDS OR MAKE OTHER DISTRIBUTIONS RATABLY TO
ITS EQUITY HOLDERS, (II) THE BORROWER AND THE SUBSIDIARIES MAY PAY DIVIDENDS IN
RESPECT OF DISQUALIFIED STOCK PERMITTED TO BE ISSUED HEREUNDER AND (III) THE
BORROWER MAY MAKE TAX PAYMENTS TO PARENT; PROVIDED, HOWEVER, THAT THE AMOUNT OF
SUCH TAX PAYMENTS SHALL NOT EXCEED THE AMOUNT THAT THE BORROWER AND THE
SUBSIDIARIES WOULD BE REQUIRED TO PAY IN RESPECT OF FEDERAL, STATE AND LOCAL
TAXES WERE THE BORROWER AND THE SUBSIDIARIES TO PAY SUCH TAXES AS STAND-ALONE
TAXPAYERS.
(B)
ENTER INTO, INCUR