SALES NOT EXCEEDING IN THE AGGREGATE
DURING THE TERM OF THE FACILITY 17.0% OF THE TOTAL NET CONSOLIDATED ASSETS OF
THE BORROWER AS OF THE TRANSACTION CLOSING DATE AND
(B)
THE DISPOSITION (THROUGH SALE OR MERGER OR
OTHERWISE) OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE BORROWER AND ITS
SUBSIDIARIES TAKEN AS A WHOLE SO LONG AS THE PURCHASE PRICE OF THE ASSETS
SUBJECT TO THE DISPOSITION IS AT LEAST EQUAL TO (I) IF THE DISPOSITION OCCURS
PRIOR TO THE FIRST ANNIVERSARY OF THE TRANSACTION CLOSING DATE, THE BOOK VALUE
OF SUCH ASSETS AS OF THE
48
TRANSACTION CLOSING DATE, AND (II), IF SUCH DISPOSITION OCCURS AT ANY TIME
THEREAFTER, 110% OF THE BOOK VALUE OF SUCH ASSETS AS OF THE TRANSACTION CLOSING
DATE.
NOTHING IN THIS SECTION 9.6 SHALL OPERATE TO PREVENT THE TRANSACTIONS
CONTEMPLATED BY THE ASSET EXCHANGE AGREEMENT OR THE TRANSACTION AGREEMENT.
9.7
TRANSACTIONS WITH AFFILIATES.
(A)
THE BORROWER SHALL NOT, AND SHALL NOT
PERMIT ANY OF THE OTHER LOAN PARTIES TO, ENTER INTO OR PERMIT TO EXIST ANY
TRANSACTION OR SERIES OF RELATED TRANSACTIONS WITH, OR FOR THE BENEFIT OF, ANY
AFFILIATE OF THE BORROWER, COWEN OR EXCHANGE SUB AS APPLICABLE, OR ANY BORROWER
PRINCIPAL OR ANY AFFILIATE OR FAMILY MEMBER OF A BORROWER PRINCIPAL, COWEN OR
EXCHANGE SUB (EACH AN "AFFILIATE TRANSACTION"), OTHER THAN (X) AFFILIATE
TRANSACTIONS PERMITTED UNDER SECTION 9.7(B) AND (Y) AFFILIATE TRANSACTIONS ON
TERMS THAT ARE NO LESS FAVORABLE TO THE BORROWER OR SUCH SUBSIDIARY, COWEN OR
EXCHANGE SUB AS APPLICABLE, THAN THOSE THAT MIGHT REASONABLY HAVE BEEN OBTAINED
OR ARE OBTAINABLE IN A COMPARABLE TRANSACTION AT SUCH TIME ON AN ARM'S-LENGTH
BASIS FROM A PERSON THAT IS NOT AN AFFILIATE OF THE BORROWER OR, ANY BORROWER
PRINCIPAL.
(B)
THE RESTRICTIONS SET FORTH IN SECTION 9.7(A)
SHALL NOT APPLY TO:
(I) REASONABLE FEES AND COMPENSATION PAID TO, AND
INDEMNIFICATION FOR, OFFICERS, EMPLOYEES, CONSULTANTS OR AGENTS OF ANY LOAN
PARTY; (II) TRANSACTIONS BETWEEN OR AMONG THE BORROWER AND ANY OF THE OTHER LOAN
PARTIES; (III) ANY AGREEMENT OR ARRANGEMENT AS IN EFFECT ON THE DATE HEREOF OR
ANY AMENDMENT THERETO OR ANY TRANSACTION CONTEMPLATED THEREBY (INCLUDING
PURSUANT TO ANY AMENDMENT THERETO) OR IN ANY REPLACEMENT AGREEMENT OR
ARRANGEMENT THERETO SO LONG AS ANY SUCH AMENDMENT OR REPLACEMENT AGREEMENT OR
ARRANGEMENT IS NOT MORE DISADVANTAGEOUS TO THE BORROWER OR ANY OTHER LOAN PARTY
IN ANY MATERIAL RESPECT THAN THE ORIGINAL AGREEMENT OR ARRANGEMENT AS IN EFFECT
ON THE DATE HEREOF AND PROVIDED THAT THE MATERIAL TERMS OF ALL SUCH AGREEMENTS
OR ARRANGEMENTS HAVE BEEN DISCLOSED IN WRITING TO THE ADMINISTRATIVE AGENT PRIOR
TO THE DATE HEREOF; (IV) ANY DISTRIBUTION IN RESPECT OF, OR REPURCHASE OF, THE
BORROWER'S CAPITAL STOCK PERMITTED UNDER THIS AGREEMENT; (V) TRANSACTIONS
BETWEEN OR AMONG THE BORROWER, ANY OF THE OTHER LOAN PARTIES AND ANY MANAGED
FUND; AND (VI) TRANSACTIONS BETWEEN OR AMONG THE LOAN PARTIES AND ANY LENDER OR
ANY OF THE LENDERS' AFFILIATES.
9.8
FINANCIAL CONDITION.
(A)
THE BORROWER SHALL NOT PERMIT ITS NET
WORTH, AS