(OR PERMIT THE AMENDMENT OR MODIFICATION OF) ANY
PROVISIONS OF ANY PERMITTED ACQUIRED DEBT, ANY SCHEDULED EXISTING INDEBTEDNESS,
ANY EXISTING 2008 SENIOR SUBORDINATED NOTES DOCUMENT, ANY EXISTING 2010 SENIOR
SUBORDINATED NOTES DOCUMENT, ANY EXISTING 2010 SENIOR NOTES DOCUMENT AND, ON AND
AFTER THE EXECUTION, DELIVERY AND/OR INCURRENCE THEREOF, ANY PERMITTED SENIOR
UNSECURED NOTES DOCUMENT, ANY PERMITTED SENIOR SUBORDINATED NOTES DOCUMENT AND
ANY AGREEMENTS OR INSTRUMENTS RELATING TO ANY OTHER PERMITTED JUNIOR CAPITAL OR
ANY OTHER PERMITTED REFINANCING INDEBTEDNESS, IN ANY SUCH CASE OTHER THAN
AMENDMENTS OR MODIFICATIONS THAT ARE NOT IN ANY WAY ADVERSE TO THE INTERESTS OF
THE LENDERS; PROVIDED THAT IN NO EVENT SHALL ANY AMENDMENT TO THE FOREGOING (I)
INCREASE THE APPLICABLE INTEREST RATE, (II) SHORTEN THE MATURITY DATE FROM THAT
THERETOFORE IN EFFECT, (III) MODIFY OR CHANGE ANY SUBORDINATION PROVISIONS
CONTAINED THEREIN OR (IV) MAKE ANY COVENANT MORE RESTRICTIVE THAN PREVIOUSLY
EXISTED THEREUNDER; AND/OR
(B)
AMEND, MODIFY OR CHANGE IN ANY MANNER ADVERSE TO THE INTERESTS OF
THE LENDERS THE ORGANIZATIONAL DOCUMENTS (INCLUDING BY-LAWS) OF ANY PLEDGE PARTY
(INCLUDING, WITHOUT LIMITATION, BY THE FILING OR MODIFICATION OF ANY CERTIFICATE
OR ARTICLES OF DESIGNATION, OTHER THAN ANY CERTIFICATE OF DESIGNATION RELATING
TO DISQUALIFIED PREFERRED STOCK OR QUALIFIED PREFERRED STOCK ISSUED AS PERMITTED
HEREIN), ANY AGREEMENT ENTERED INTO BY THE BORROWER WITH RESPECT TO ITS CAPITAL
STOCK, OR ENTER INTO ANY NEW AGREEMENT IN ANY MANNER ADVERSE TO THE INTERESTS OF
THE LENDERS WITH RESPECT TO THE CAPITAL STOCK OF THE BORROWER (IN EACH CASE
OTHER THAN AN AGREEMENT GOVERNING DISQUALIFIED PREFERRED STOCK OR QUALIFIED
PREFERRED STOCK ISSUED AS PERMITTED HEREIN).
7.09
RESTRICTED PAYMENTS, ETC.
(A)
THE BORROWER WILL NOT, AND WILL NOT PERMIT
ANY OF ITS SUBSIDIARIES TO, MAKE ANY RESTRICTED PAYMENT, EXCEPT THAT:
(I)
(X) ANY SUBSIDIARY OF THE BORROWER MAY PAY DIVIDENDS TO THE
BORROWER OR ANY WHOLLY-OWNED SUBSIDIARY OF THE BORROWER (INCLUDING BY WAY OF
CONVERSION OF INTERCOMPANY PAYABLES) AND (Y) ANY NON-WHOLLY-OWNED SUBSIDIARY OF
THE BORROWER MAY PAY CASH DIVIDENDS TO ITS SHAREHOLDERS GENERALLY, SO LONG AS
THE BORROWER OR ITS RESPECTIVE SUBSIDIARY WHICH OWNS THE EQUITY INTEREST IN THE
SUBSIDIARY PAYING SUCH DIVIDENDS RECEIVES AT LEAST ITS PROPORTIONATE SHARE
THEREOF (BASED UPON ITS RELATIVE HOLDING OF THE EQUITY INTERESTS IN THE
SUBSIDIARY PAYING SUCH DIVIDENDS AND TAKING INTO ACCOUNT THE RELATIVE
PREFERENCES, IF ANY, OF THE VARIOUS CLASSES OF EQUITY INTERESTS OF SUCH
SUBSIDIARY);
(II)
THE BORROWER MAY REDEEM OR REPURCHASE SHARES OF BORROWER COMMON
STOCK (OR OPTIONS, WARRANTS AND/OR APPRECIATION RIGHTS IN RESPECT THEREOF) FROM
SHAREHOLDERS, OFFICERS, EMPLOYEES, CONSULTANTS AND DIRECTORS (OR THEIR ESTATES)
UPON THE DEATH, PERMANENT DISABILITY, RETIREMENT OR TERMINATION OF EMPLOYMENT OF
ANY SUCH PERSON OR OTHERWISE IN ACCORDANCE WITH ANY SHAREHOLDER AGREEMENT, STOCK
OPTION PLAN OR ANY EMPLOYEE STOCK OWNERSHIP PLAN, PROVIDED THAT (X) NO DEFAULT
OR EVENT OF DEFAULT IS THEN IN EXISTENCE OR WOULD ARISE THEREFROM AND (Y) THE
AGGREGATE AMOUNT OF ALL CASH PAID IN
65
RESPECT OF ALL SUCH SHARES, OPTIONS, WARRANTS AND RIGHTS SO REDEEMED OR
REPURCHASED IN ANY CALENDAR YEAR,