AND CONDITIONS NOT LESS FAVORABLE TO THE BORROWER OR SUCH SUBSIDIARY THAN COULD
BE OBTAINED ON AN ARM'S-LENGTH BASIS FROM UNRELATED THIRD PARTIES, (B)
TRANSACTIONS BETWEEN OR AMONG THE BORROWER AND ITS WHOLLY OWNED SUBSIDIARIES NOT
INVOLVING ANY OTHER AFFILIATE AND (C)
ANY RESTRICTED PAYMENT PERMITTED BY
SECTION 6.06.
SECTION 6.08.
RESTRICTIVE AGREEMENTS.
THE BORROWER WILL NOT, AND WILL NOT
PERMIT ANY OF ITS SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, ENTER INTO, INCUR OR
PERMIT TO EXIST ANY AGREEMENT OR OTHER ARRANGEMENT THAT PROHIBITS, RESTRICTS OR
IMPOSES ANY CONDITION UPON (A) THE ABILITY OF THE BORROWER OR ANY SUBSIDIARY TO
CREATE, INCUR OR PERMIT TO EXIST ANY LIEN UPON ANY OF ITS PROPERTY OR ASSETS, OR
(B) THE ABILITY OF ANY SUBSIDIARY TO PAY DIVIDENDS OR OTHER DISTRIBUTIONS WITH
RESPECT TO ANY SHARES OF ITS CAPITAL STOCK OR TO MAKE OR REPAY LOANS OR ADVANCES
TO THE BORROWER OR ANY OTHER SUBSIDIARY OR TO GUARANTY INDEBTEDNESS OF THE
BORROWER OR ANY OTHER SUBSIDIARY; PROVIDED THAT (I) THE FOREGOING SHALL NOT
APPLY TO RESTRICTIONS AND CONDITIONS IMPOSED BY LAW OR BY THIS AGREEMENT OR BY
THE NOTE PURCHASE AGREEMENT (AS IN EFFECT ON THE EFFECTIVE DATE), (II) THE
FOREGOING SHALL NOT APPLY TO RESTRICTIONS AND CONDITIONS EXISTING ON THE DATE
HEREOF IDENTIFIED ON SCHEDULE 6.08 (BUT SHALL APPLY TO ANY EXTENSION OR RENEWAL
OF, OR ANY AMENDMENT OR MODIFICATION EXPANDING THE SCOPE OF, ANY SUCH
RESTRICTION OR CONDITION), (III) THE FOREGOING SHALL NOT APPLY TO CUSTOMARY
RESTRICTIONS AND CONDITIONS CONTAINED IN AGREEMENTS RELATING TO THE SALE OF A
SUBSIDIARY PENDING SUCH SALE, PROVIDED SUCH RESTRICTIONS AND CONDITIONS APPLY
ONLY TO THE SUBSIDIARY THAT IS TO BE SOLD AND SUCH SALE IS PERMITTED HEREUNDER,
(IV) CLAUSE (A) OF THE FOREGOING SHALL NOT APPLY TO RESTRICTIONS OR CONDITIONS
IMPOSED BY ANY AGREEMENT RELATING TO SECURED INDEBTEDNESS PERMITTED BY THIS
AGREEMENT IF SUCH RESTRICTIONS OR CONDITIONS APPLY ONLY TO THE PROPERTY OR
ASSETS SECURING SUCH INDEBTEDNESS AND (V) CLAUSE (A) OF THE FOREGOING SHALL NOT
APPLY TO CUSTOMARY PROVISIONS IN LEASES AND OTHER CONTRACTS RESTRICTING THE
ASSIGNMENT THEREOF.
SECTION 6.09.
DISPOSITION OF ASSETS; ETC.
SELL, LEASE, LICENSE, TRANSFER,
ASSIGN OR OTHERWISE DISPOSE OF ANY MATERIAL PORTION OF ITS BUSINESS, ASSETS,
RIGHTS, REVENUES OR PROPERTY, REAL, PERSONAL OR MIXED, TANGIBLE OR INTANGIBLE,
WHETHER IN ONE OR A SERIES OF TRANSACTIONS, OTHER THAN INVENTORY SOLD IN THE
ORDINARY COURSE OF BUSINESS UPON CUSTOMARY CREDIT TERMS AND SALES OF SCRAP OR
OBSOLETE MATERIAL OR EQUIPMENT, PROVIDED, HOWEVER, THAT THIS SECTION 6.09 SHALL
NOT PROHIBIT ANY SUCH SALE, LEASE, LICENSE, TRANSFER, ASSIGNMENT OR OTHER
DISPOSITION IF THE AGGREGATE BOOK VALUE (DISREGARDING ANY WRITE-DOWNS OF SUCH
BOOK VALUE OTHER THAN ORDINARY DEPRECIATION AND AMORTIZATION) OF ALL OF THE
BUSINESS, ASSETS, RIGHTS, REVENUES AND PROPERTY DISPOSED OF AFTER THE DATE OF
THIS AGREEMENT SHALL BE LESS THAN 10% PERCENT
43
of such aggregate book value of the total assets of the Borrower or such
Subsidiary, as the case may be and if, immediately before and after such
transaction, no Event