AND SET FORTH ON
SCHEDULE 6.04 AND ANY MODIFICATION, REPLACEMENT, RENEWAL OR EXTENSION THEREOF;
PROVIDED, THAT THE AMOUNT OF THE ORIGINAL INVESTMENT IS NOT INCREASED EXCEPT BY
THE TERMS OF SUCH INVESTMENT OR AS OTHERWISE PERMITTED BY THIS SECTION 6.04;
(G)
INVESTMENTS IN THE ORDINARY COURSE CONSISTING OF ENDORSEMENTS FOR
COLLECTION OR DEPOSIT;
(H)
THE ACQUISITION; AND
(I)
ADDITIONAL INVESTMENTS NOT TO EXCEED $500,000 AT ANY TIME OUTSTANDING.
SECTION 6.05.
MERGERS, CONSOLIDATIONS, AND SALES OF ASSETS.
(A)
WIND UP, LIQUIDATE OR DISSOLVE ITS AFFAIRS OR MERGE INTO OR CONSOLIDATE WITH ANY
OTHER PERSON, OR PERMIT ANY OTHER PERSON TO MERGE INTO OR CONSOLIDATE WITH IT,
EXCEPT ANY SUBSIDIARY MAY MERGE OR CONSOLIDATE INTO (A) THE BORROWER IN A
TRANSACTION IN WHICH THE BORROWER IS THE SURVIVING CORPORATION OR (B) ANY
SUBSIDIARY GUARANTOR SO LONG AS SUCH SUBSIDIARY GUARANTOR IS THE SURVIVING
CORPORATION.
(B)
MAKE ANY ASSET SALE EXCEPT:
(I)
ASSET SALES OF OBSOLETE, USED, SURPLUS OR WORN OUT PROPERTY, WHETHER NOW
OWNED OR HEREAFTER ACQUIRED, OR OF PROPERTY NO LONGER USED OR USEFUL IN THE
50
CONDUCT OF BUSINESS OF THE BORROWER AND THE SUBSIDIARIES, IN EACH CASE IN THE
ORDINARY COURSE OF BUSINESS;
(II)
ASSET SALES OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS;
(III)
ASSET SALES BY THE BORROWER OR ANY OF ITS SUBSIDIARIES TO THE BORROWER OR
ANY OF ITS SUBSIDIARIES (IN EACH CASE INCLUDING ANY SUCH ASSET SALES EFFECTED
PURSUANT TO A MERGER, LIQUIDATION OR DISSOLUTION); PROVIDED, THAT IF THE
TRANSFEROR OF SUCH PROPERTY IS A LOAN PARTY (X) THE TRANSFEREE THEREOF MUST
EITHER BE THE BORROWER OR A SUBSIDIARY GUARANTOR OR (Y) TO THE EXTENT SUCH
TRANSACTION CONSTITUTES AN INVESTMENT, SUCH TRANSACTION IS PERMITTED UNDER
SECTION 6.04;
(IV)
ASSET SALES OF PERMITTED INVESTMENTS;
(V)
LEASES OR SUBLEASES OF PROPERTY IN THE ORDINARY COURSE OF BUSINESS AND
WHICH DO NOT MATERIALLY INTERFERE WITH THE BUSINESS OF THE BORROWER AND THE
SUBSIDIARIES; AND
(VI)
ASSET SALES IN THE ORDINARY COURSE OF BUSINESS CONSISTING OF THE
ABANDONMENT OF INTELLECTUAL PROPERTY RIGHTS WHICH, IN THE REASONABLE GOOD FAITH
DETERMINATION OF THE BORROWER, ARE NOT MATERIAL TO THE CONDUCT OF THE BUSINESS
OF THE BORROWER AND THE SUBSIDIARIES.
SECTION 6.06.
RESTRICTED PAYMENTS; RESTRICTIVE AGREEMENTS.
(A)
DECLARE OR MAKE, OR AGREE TO DECLARE OR MAKE, DIRECTLY OR INDIRECTLY, ANY
RESTRICTED PAYMENT, OR INCUR ANY OBLIGATION (CONTINGENT OR OTHERWISE) TO DO SO
EXCEPT:
(I)
ANY SUBSIDIARY MAY DECLARE AND MAKE RESTRICTED PAYMENTS RATABLY TO ITS
EQUITY HOLDERS;
(II)
THE BORROWER AND ITS SUBSIDIARIES MAY DECLARE AND MAKE RESTRICTED PAYMENTS
PAYABLE SOLELY IN THE EQUITY INTERESTS OF SUCH PERSON;
(III)
ON THE CLOSING DATE, THE PARENT AND ITS SUBSIDIARIES MAY CONSUMMATE THE
TRANSACTION;
(IV)
TO THE EXTENT CONSTITUTING RESTRICTED PAYMENTS, THE BORROWER AND ITS
SUBSIDIARIES MAY ENTER INTO TRANSACTIONS EXPRESSLY PERMITTED BY SECTION 6.05 OR
6.07; AND
(V)
REPURCHASES OF EQUITY INTERESTS OF THE BORROWER DEEMED TO OCCUR UPON
EXERCISE OF STOCK OPTIONS OR WARRANTS IF SUCH EQUITY INTERESTS REPRESENT A
PORTION OF THE EXERCISE PRICE OF SUCH OPTIONS OR WARRANTS;
(B)