IN A SIMILAR BUSINESS IN SIMILAR CIRCUMSTANCES.
9.09
RESTRICTION ON FUNDAMENTAL CHANGES.
NO LOAN PARTY SHALL MERGE INTO
OR CONSOLIDATE WITH ANY OTHER PERSON, OR PERMIT ANY OTHER PERSON TO MERGE INTO
IT, OR LIQUIDATE, WIND-UP OR DISSOLVE (OR SUFFER ANY LIQUIDATION OR
DISSOLUTION), OR CONVEY, LEASE, SELL, TRANSFER OR OTHERWISE DISPOSE OF, IN ONE
TRANSACTION OR SERIES OF TRANSACTIONS, ALL OR SUBSTANTIALLY ALL OF ITS BUSINESS
OR ASSETS, WHETHER NOW OR HEREAFTER ACQUIRED EXCEPT THAT:
(I)
ANY LOAN PARTY MAY MERGE OR CONSOLIDATE INTO, OR LIQUIDATE OR
DISSOLVE INTO, THE BORROWER, PROVIDED THAT THE BORROWER IS THE SURVIVING ENTITY;
(II)
OTHER THAN WITH RESPECT TO THE BORROWER, ANY LOAN PARTY MAY MERGE
OR CONSOLIDATE INTO, OR LIQUIDATE OR DISSOLVE INTO, ANY OTHER LOAN PARTY; AND
(III)
ANY PERSON MAY MERGE OR CONSOLIDATE INTO A LOAN PARTY, OR A LOAN
PARTY MAY MERGE OR CONSOLIDATE INTO ANY PERSON, PROVIDED THAT (A) SUCH PERSON IS
AN ENTITY ORGANIZED AND EXISTING UNDER THE LAWS OF A STATE IN THE UNITED STATES;
(B) THE LOAN PARTY IS THE SURVIVING ENTITY AND IF THE LOAN PARTY IS NOT THE
BORROWER SUCH LOAN PARTY IS A WHOLLY-OWNED SUBSIDIARY OF THE BORROWER; AND
(C) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED OR WILL OCCUR PRIOR TO AND AFTER
GIVING EFFECT TO SUCH MERGER OR CONSOLIDATION.
9.10
SALES AND LEASEBACKS.
NO LOAN PARTY SHALL BECOME LIABLE, BY
ASSUMPTION OR BY ACCOMMODATION OBLIGATION, WITH RESPECT TO ANY LEASE OF ANY
PROPERTY (WHETHER REAL OR PERSONAL OR MIXED) (I) WHICH SUCH LOAN PARTY HAS SOLD
OR TRANSFERRED OR WILL SELL OR TRANSFER TO ANY OTHER PERSON OR (II) WHICH SUCH
LOAN PARTY INTENDS TO USE FOR SUBSTANTIALLY THE SAME PURPOSES AS ANY OTHER ASSET
WHICH IT HAS SOLD OR TRANSFERRED OR WILL SELL OR TRANSFER TO ANY OTHER PERSON IN
CONNECTION WITH SUCH LEASE (A "SALE AND LEASEBACK TRANSACTION"); PROVIDED THAT A
LOAN PARTY MAY ENTER INTO A SALE AND LEASEBACK TRANSACTION IF THE GROSS CASH
PROCEEDS OF SUCH SALE AND LEASEBACK TRANSACTION ARE AT LEAST EQUAL TO THE FAIR
MARKET VALUE (AS DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS OF SUCH LOAN
PARTY) OF THE PROPERTY THAT IS THE SUBJECT OF SUCH SALE AND LEASEBACK
TRANSACTION AND SUCH LOAN PARTY IS NOT IN VIOLATION OF SECTION 9.01(X) AFTER
GIVING EFFECT THERETO.
9.11
MARGIN REGULATIONS.
NO LOAN PARTY SHALL USE ALL OR ANY PORTION OF
THE PROCEEDS OF ANY LOAN MADE UNDER THIS AGREEMENT (I) TO PURCHASE OR CARRY ANY
MARGIN STOCK OR (II) IN VIOLATION OF REGULATION U.
66
9.12
ERISA.
THE BORROWER SHALL NOT, NOR SHALL IT PERMIT ANY ERISA
AFFILIATE TO, DO ANY OF THE FOLLOWING TO THE EXTENT THE SAME WILL HAVE OR IS
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT:
(I)
ENGAGE, OR KNOWINGLY PERMIT ANY ERISA AFFILIATE TO ENGAGE, IN ANY
PROHIBITED TRANSACTION DESCRIBED IN SECTIONS 406 OF ERISA OR 4975 OF THE CODE
FOR WHICH A CLASS EXEMPTION IS NOT AVAILABLE OR A PRIVATE EXEMPTION HAS NOT