OR (B) AS
THOUGH SUCH PURCHASE OR OTHER ACQUISITION HAD BEEN CONSUMMATED AS OF THE FIRST
DAY OF THE FISCAL PERIOD COVERED THEREBY; AND
(IV)
THE BORROWERS SHALL HAVE DELIVERED TO THE ADMINISTRATIVE AGENT AND
EACH LENDER, AT LEAST FIVE BUSINESS DAYS PRIOR TO THE DATE ON WHICH ANY SUCH
PURCHASE OR OTHER ACQUISITION IS TO BE CONSUMMATED, A CERTIFICATE OF A
RESPONSIBLE OFFICER, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT AND THE REQUIRED LENDERS, CERTIFYING THAT ALL OF THE
REQUIREMENTS SET FORTH IN THIS CLAUSE (H) HAVE BEEN SATISFIED OR WILL BE
SATISFIED ON OR PRIOR TO THE CONSUMMATION OF SUCH PURCHASE OR OTHER ACQUISITION;
AND
(I)
SO LONG AS IMMEDIATELY BEFORE AND AFTER GIVING PRO FORMA EFFECT TO ANY
SUCH INVESTMENT (WHETHER SUCH INVESTMENT GAVE RISE TO OR IS MADE AFTER THE
OCCURRENCE OF A COVENANT TRIGGERING EVENT) THE AGGREGATE BASKET AMOUNT AS OF
SUCH DATE IS LESS THAN OR EQUAL TO THE MAXIMUM AGGREGATE BASKET AMOUNT,
INVESTMENTS BY THE COMPANY AND ITS
84
SUBSIDIARIES NOT OTHERWISE PERMITTED UNDER THIS SECTION 7.03; PROVIDED THAT,
WITH RESPECT TO EACH INVESTMENT MADE PURSUANT TO THIS SECTION 7.03(I):
(I)
SUCH INVESTMENT SHALL BE IN PROPERTY THAT IS PART OF, OR IN LINES
OF BUSINESS PERMITTED UNDER SECTION 7.07; AND
(II)
(A) IMMEDIATELY BEFORE AND IMMEDIATELY AFTER GIVING PRO FORMA
EFFECT TO ANY SUCH PURCHASE OR OTHER ACQUISITION, NO DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING AND (B) IMMEDIATELY AFTER GIVING EFFECT TO SUCH PURCHASE OR
OTHER ACQUISITION, THE COMPANY AND ITS SUBSIDIARIES SHALL BE IN PRO FORMA
COMPLIANCE WITH THE COVENANT SET FORTH IN SECTION 6.18, SUCH COMPLIANCE TO BE
DETERMINED ON THE BASIS OF THE FINANCIAL INFORMATION MOST RECENTLY DELIVERED TO
THE ADMINISTRATIVE AGENT AND THE LENDERS PURSUANT TO SECTION 6.01(A) OR (B) AS
THOUGH SUCH INVESTMENT HAD BEEN CONSUMMATED AS OF THE FIRST DAY OF THE FISCAL
PERIOD COVERED THEREBY; AND
(J)
INVESTMENTS MADE UNDER AND PURSUANT TO THE DEFERRED COMPENSATION PLAN AS
IN EFFECT ON THE DATE OF SUCH COVENANT TRIGGERING EVENT (BUT SUBJECT TO ANY
AMENDMENTS REQUIRED AFTER SUCH COVENANT TRIGGERING EVENT IN ORDER TO COMPLY WITH
APPLICABLE LAW).
7.04
Fundamental Changes.
Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(A)
ANY SUBSIDIARY MAY MERGE WITH (I) THE COMPANY, PROVIDED THAT THE COMPANY
SHALL BE THE CONTINUING OR SURVIVING PERSON, (II) ANY OTHER LOAN PARTY, PROVIDED
THAT THE SURVIVING PERSON SHALL BE OR SHALL BECOME A LOAN PARTY OR (III) ANY ONE
OR MORE OTHER SUBSIDIARIES, PROVIDED THAT WHEN ANY WHOLLY-OWNED SUBSIDIARY IS
MERGING WITH ANOTHER SUBSIDIARY, SUCH WHOLLY-OWNED SUBSIDIARY SHALL BE THE
SURVIVING PERSON;
(B)
ANY LOAN PARTY MAY DISPOSE OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS (UPON
VOLUNTARY LIQUIDATION OR OTHERWISE) TO THE COMPANY