COURSE OF BUSINESS;
(E)
THE BORROWER AND THE SUBSIDIARIES MAY MAKE LOANS AND ADVANCES IN THE
ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE TO THEIR RESPECTIVE
EMPLOYEES SO LONG AS THE AGGREGATE PRINCIPAL AMOUNT (DETERMINED WITHOUT REGARD
TO ANY WRITE-DOWNS OR WRITE-OFFS OF SUCH LOANS AND ADVANCES, OTHER THAN
WRITE-DOWNS OR WRITE-OFFS FOR WHICH THE TOTAL AMOUNT OF SUCH WRITE-DOWN OR
WRITE-OFF IS INCLUDED AS A CHARGE IN CONSOLIDATED EBITDA) DOES NOT EXCEED
$25,000,000 IN THE AGGREGATE OUTSTANDING AT ANY TIME;
64
(F)
THE BORROWER MAY ENTER INTO HEDGING AGREEMENTS THAT ARE NOT SPECULATIVE IN
NATURE AND ARE RELATED TO INCOME DERIVED FROM OPERATIONS OF THE BORROWER OR ANY
SUBSIDIARY OR OTHERWISE RELATED TO PURCHASES FROM SUPPLIERS;
(G)
THE BORROWER OR ANY SUBSIDIARY MAY ACQUIRE ALL OR SUBSTANTIALLY ALL THE
ASSETS OF A PERSON OR LINE OF BUSINESS OF SUCH PERSON, OR ALL OR SUBSTANTIALLY
ALL OF THE EQUITY INTERESTS OF A PERSON THAT AS A RESULT BECOMES A WHOLLY OWNED
SUBSIDIARY (REFERRED TO HEREIN AS THE "ACQUIRED ENTITY"); PROVIDED THAT (I) SUCH
ACQUISITION WAS NOT PRECEDED BY AN UNSOLICITED TENDER OFFER FOR SUCH EQUITY
INTERESTS BY, OR PROXY CONTEST INITIATED BY, HOLDINGS, THE BORROWER OR ANY
SUBSIDIARY; (II) THE ACQUIRED ENTITY SHALL BE A GOING CONCERN AND SHALL BE IN A
SIMILAR LINE OF BUSINESS AS THAT OF THE BORROWER AND THE SUBSIDIARIES AS
CONDUCTED DURING THE CURRENT AND MOST RECENT CALENDAR YEAR; AND (III) AT THE
TIME OF SUCH TRANSACTION (A) BOTH BEFORE AND AFTER GIVING EFFECT THERETO, NO
EVENT OF DEFAULT OR DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING; (B) THE
BORROWER WOULD BE IN PRO FORMA COMPLIANCE, AS EVIDENCED BY A CERTIFICATE OF A
FINANCIAL OFFICER OF THE BORROWER WHICH SHALL HAVE BEEN PREPARED IN GOOD FAITH
AND BASED ON REASONABLY DETAILED WRITTEN ASSUMPTIONS; (C) AFTER GIVING EFFECT TO
SUCH ACQUISITION, THERE MUST BE AT LEAST $40,000,000 OF UNUSED AND AVAILABLE
REVOLVING CREDIT COMMITMENTS; AND (D) THE AGGREGATE CONSIDERATION PAID IN
CONNECTION WITH SUCH ACQUISITION AND ANY RELATED ACQUISITIONS PURSUANT TO THIS
SECTION 6.04(G) (INCLUDING ANY INDEBTEDNESS OF THE ACQUIRED ENTITY THAT IS
ASSUMED BY THE BORROWER OR ANY SUBSIDIARY FOLLOWING SUCH ACQUISITION AND THE
AMOUNT OF ANY FORGIVABLE LOAN TO THE ACQUIRED ENTITY) SHALL NOT EXCEED
(X) $20,000,000 FOR SUCH ACQUISITION AND (Y) $60,000,000 FOR ALL SUCH
ACQUISITIONS PURSUANT TO THIS SECTION 6.04(G) (ANY ACQUISITION OF AN ACQUIRED
ENTITY MEETING ALL THE CRITERIA OF THIS SECTION 6.04(G) BEING REFERRED TO HEREIN
AS A "PERMITTED ACQUISITION");
(H)
INVESTMENTS MADE BY MELODY IN CONNECTION WITH THE MELODY LOAN ARBITRAGE
FACILITY OR THE MELODY MORTGAGE WAREHOUSING FACILITY;
(I)
CO-INVESTMENTS (OTHER THAN WITH RESPECT TO THE CALPERS CO-INVESTMENT) NOT
TO EXCEED $30,000,000 IN ANY FISCAL YEAR OF THE BORROWER AND CO-INVESTMENTS
PURSUANT TO THE CALPERS CO-INVESTMENT NOT TO EXCEED $26,000,000 IN THE AGGREGATE
OUTSTANDING AT ANY TIME; PROVIDED, HOWEVER, THAT THE AGGREGATE AMOUNT OF
CO-INVESTMENTS IN EACH FISCAL YEAR MADE IN CO-INVESTMENT VEHICLES THAT ARE
ORGANIZED IN, OR THE PRINCIPAL REAL ESTATE INVESTMENTS OF WHICH ARE LOCATED