EQUIPMENT ACQUIRED, CONSTRUCTED OR IMPROVED BY
THE BORROWER OR ANY SUBSIDIARY; PROVIDED THAT (I) SUCH SECURITY INTERESTS SECURE
INDEBTEDNESS PERMITTED BY CLAUSE (D) OF SECTION 6.02, (II) SUCH SECURITY
INTERESTS AND THE INDEBTEDNESS SECURED THEREBY ARE INCURRED PRIOR TO OR WITHIN
90 DAYS AFTER SUCH ACQUISITION OR THE COMPLETION OF SUCH CONSTRUCTION OR
IMPROVEMENT, (III) THE INDEBTEDNESS SECURED THEREBY DOES NOT EXCEED 70% OF THE
COST OF ACQUIRING, CONSTRUCTING OR IMPROVING SUCH PROPERTY, PLANT AND EQUIPMENT,
AND (IV) SUCH SECURITY INTERESTS SHALL NOT APPLY TO ANY OTHER PROPERTY OR ASSETS
OF THE BORROWER OR ANY SUBSIDIARY.
SECTION 6.04.
FUNDAMENTAL CHANGES.
(A)
THE BORROWER WILL NOT, AND WILL NOT
PERMIT ANY SUBSIDIARY TO, MERGE INTO OR CONSOLIDATE WITH ANY OTHER PERSON, OR
PERMIT ANY OTHER PERSON TO MERGE INTO OR CONSOLIDATE WITH IT, OR SELL, TRANSFER,
LEASE OR OTHERWISE DISPOSE OF (IN ONE TRANSACTION OR IN A SERIES OF
TRANSACTIONS) ALL OR SUBSTANTIALLY ALL OF ITS ASSETS, OR ALL OR SUBSTANTIALLY
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ALL OF THE STOCK OF ANY OF ITS SUBSIDIARIES (IN EACH CASE, WHETHER NOW OWNED OR
HEREAFTER ACQUIRED), OR LIQUIDATE OR DISSOLVE, EXCEPT THAT, IF AT THE TIME
THEREOF AND IMMEDIATELY AFTER GIVING EFFECT THERETO NO DEFAULT SHALL HAVE
OCCURRED AND BE CONTINUING (I) ANY OTHER PERSON, INCLUDING A SUBSIDIARY, MAY
MERGE INTO THE BORROWER IN A TRANSACTION IN WHICH THE BORROWER IS THE SURVIVING
CORPORATION, (II) ANY SUBSIDIARY MAY MERGE INTO ANY SUBSIDIARY IN A TRANSACTION
IN WHICH THE SURVIVING ENTITY IS A SUBSIDIARY, (III) ANY SUBSIDIARY MAY SELL,
TRANSFER, LEASE OR OTHERWISE DISPOSE OF ITS ASSETS TO THE BORROWER OR TO ANOTHER
SUBSIDIARY, (IV) ANY SUBSIDIARY MAY LIQUIDATE OR DISSOLVE IF THE BORROWER
DETERMINES IN GOOD FAITH THAT SUCH LIQUIDATION OR DISSOLUTION IS IN THE BEST
INTERESTS OF THE BORROWER AND IS NOT MATERIALLY DISADVANTAGEOUS TO THE LENDERS,
AND (V) THE BORROWER MAY MERGE INTO OR CONSOLIDATE WITH ANOTHER PERSON IN A
TRANSACTION IN WHICH SUCH OTHER PERSON IS THE SURVIVING ENTITY IF SUCH OTHER
PERSON IS ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF THE UNITED STATES OR
ANY STATE THEREOF AND BY OPERATION OF LAW OR OTHERWISE ASSUMES ALL OBLIGATIONS
OF THE BORROWER HEREUNDER AND SUCH ASSUMPTION IS EVIDENCED BY AN OPINION OF
COUNSEL TO SUCH OTHER PERSON SATISFACTORY IN FORM AND SUBSTANCE TO THE
ADMINISTRATIVE AGENT; PROVIDED THAT ANY SUCH MERGER INVOLVING A PERSON THAT IS
NOT A WHOLLY OWNED SUBSIDIARY IMMEDIATELY PRIOR TO SUCH MERGER SHALL NOT BE
PERMITTED UNLESS ALSO PERMITTED BY SECTION 6.05.
(B)
THE BORROWER WILL NOT, AND WILL NOT PERMIT ANY OF ITS SUBSIDIARIES TO,
ENGAGE TO ANY MATERIAL EXTENT IN ANY BUSINESS OTHER THAN BUSINESSES OF THE TYPE
CONDUCTED BY THE BORROWER AND ITS SUBSIDIARIES ON THE DATE OF EXECUTION OF THIS
AGREEMENT AND BUSINESSES REASONABLY RELATED THERETO.
SECTION 6.05.
INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS;
HEDGING AGREEMENTS.
(A)
THE BORROWER WILL NOT, AND WILL NOT PERMIT ANY OF ITS
SUBSIDIARIES TO, PURCHASE, HOLD OR ACQUIRE (INCLUDING PURSUANT TO ANY MERGER
WITH ANY PERSON THAT WAS NOT