SUBSIDIARY (INCLUDING, WITHOUT LIMITATION ANY INACTIVE
ENTITY) TO, DIRECTLY OR INDIRECTLY, DECLARE, ORDER, PAY, MAKE OR SET APART ANY
SUM FOR ANY RESTRICTED DISTRIBUTION (INCLUDING, WITHOUT LIMITATION PURSUANT TO
THE TERMS OF THE PUT AND CALL AGREEMENT); PROVIDED THAT THE FOREGOING SHALL NOT
RESTRICT OR PROHIBIT WHOLLY-OWNED SUBSIDIARIES FROM MAKING DIVIDENDS OR
DISTRIBUTIONS TO A BORROWER AND SHALL NOT RESTRICT OR PROHIBIT:
(A)
PURCHASES OF SHARES BY HOLDINGS OF (OR OPTIONS TO PURCHASE SHARES
OF) EQUITY INTERESTS IN HOLDINGS OR OPTIONS THEREFOR FROM EMPLOYEES OF ANY
CREDIT PARTY UPON THEIR DEATH, TERMINATION OR RETIREMENT, SO LONG AS (X) BEFORE
AND AFTER GIVING EFFECT TO ANY SUCH DIVIDEND OR DISTRIBUTION FOR SUCH PURPOSE,
(I) NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AND (II) BORROWERS
ARE IN COMPLIANCE ON A PRO FORMA BASIS WITH THE COVENANTS SET FORTH IN ARTICLE
VI RECOMPUTED FOR THE MOST RECENTLY ENDED QUARTER FOR WHICH INFORMATION IS
AVAILABLE AND IS IN COMPLIANCE WITH ALL OTHER TERMS AND CONDITIONS OF THIS
AGREEMENT AND (Y) SUCH PURCHASES OR PAYMENTS AFTER THE DATE HEREOF DO NOT EXCEED
$100,000 IN ANY FISCAL YEAR AND DO NOT EXCEED $250,000 IN THE AGGREGATE; AND
(B)
THE ISSUANCE BY HOLDINGS OF SERIES C PREFERRED STOCK WITH TERMS
AND PROVISIONS REASONABLY ACCEPTABLE TO AGENT AS CONSIDERATION PURSUANT TO THE
EXERCISE BY
INVESTOR OF ITS PUT OPTION UNDER THE PUT AND CALL AGREEMENT WITH RESPECT TO UP
TO 7 MILLION SHARE OF COMMON STOCK OF HOLDINGS HELD BY INVESTOR.
SECTION 5.5
RESTRICTIVE AGREEMENTS.
NEITHER BORROWER WILL, NOR WILL
IT PERMIT ANY SUBSIDIARY TO, DIRECTLY OR INDIRECTLY (I) ENTER INTO OR ASSUME ANY
AGREEMENT (OTHER THAN THE FINANCING DOCUMENTS AND THE SUBORDINATED DEBT
DOCUMENTS) PROHIBITING THE CREATION OR ASSUMPTION OF ANY LIEN UPON ITS
PROPERTIES OR ASSETS, WHETHER NOW OWNED OR HEREAFTER ACQUIRED OR (II) CREATE OR
OTHERWISE CAUSE OR SUFFER TO EXIST OR BECOME EFFECTIVE ANY CONSENSUAL
ENCUMBRANCE OR RESTRICTION OF ANY KIND (EXCEPT AS PROVIDED BY THE SUBORDINATED
DEBT DOCUMENTS) ON THE ABILITY OF ANY SUBSIDIARY TO:
(1) PAY OR MAKE RESTRICTED
DISTRIBUTIONS TO A BORROWER OR ANY OTHER SUBSIDIARY; (2) PAY ANY DEBT OWED TO A
BORROWER OR ANY OTHER SUBSIDIARY; (3) MAKE LOANS OR ADVANCES TO A BORROWER OR
ANY OTHER SUBSIDIARY; OR (4) TRANSFER ANY OF ITS PROPERTY OR ASSETS TO A
BORROWER OR ANY OTHER SUBSIDIARY.
SECTION 5.6
PAYMENTS AND MODIFICATIONS OF
SUBORDINATED DEBT AND LIABILITIES INACTIVE ENTITIES.
(A)
NEITHER BORROWER WILL, NOR WILL IT PERMIT ANY SUBSIDIARY TO,
DIRECTLY OR INDIRECTLY (I) DECLARE, PAY, MAKE OR SET ASIDE ANY AMOUNT FOR
PAYMENT IN RESPECT OF SUBORDINATED DEBT, EXCEPT FOR REGULARLY SCHEDULED PAYMENTS
OF PRINCIPAL AND INTEREST (BUT NO VOLUNTARY PREPAYMENTS) IN RESPECT OF SUCH
SUBORDINATED DEBT MADE IN FULL COMPLIANCE WITH ANY AND ALL SUBORDINATION
PROVISIONS APPLICABLE TO SUCH SUBORDINATED DEBT; AND (II) AMEND OR OTHERWISE
MODIFY THE TERMS OF ANY SUBORDINATED DEBT IF THE EFFECT OF SUCH AMENDMENT OR
MODIFICATION IS TO (A) INCREASE THE INTEREST RATE OR FEES ON SUCH DEBT; (B)
CHANGE THE