BORROWER AND ITS
SUBSIDIARIES ON A CONSOLIDATED BASIS AS OF THE DATE THEREOF AFTER GIVING EFFECT
TO SUCH ACQUISITION AND SETTING FORTH REASONABLY DETAILED CALCULATIONS
DEMONSTRATING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH IN CLAUSE
(C) ABOVE, AND WHICH SHALL INCLUDE A REPRESENTATION AND WARRANTY AS TO
COMPLIANCE WITH EACH OF THE OTHER CRITERIA FOR A "PERMITTED ACQUISITION";
(F)
IF SUCH ACQUISITION IS STRUCTURED AS A
MERGER INVOLVING A LOAN PARTY OR ANY SUBSIDIARY AND A PERSON THAT IS NOT A
SUBSIDIARY, SUCH LOAN PARTY OR SUCH SUBSIDIARY WILL BE THE SURVIVING ENTITY, OR
OTHERWISE, THE SURVIVING ENTITY SHALL BECOME A LOAN PARTY;
(G)
NO LOAN PARTY SHALL, AS A RESULT OF OR IN
CONNECTION WITH ANY SUCH ACQUISITION, ASSUME OR INCUR ANY DIRECT OR CONTINGENT
LIABILITIES (WHETHER RELATING TO ENVIRONMENTAL, TAX, LITIGATION, OR OTHER
MATTERS) THAT WOULD BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT; AND
17
(H)
IF, AS A RESULT OF SUCH ACQUISITION OR
INVESTMENT, A SIGNIFICANT SUBSIDIARY IS FORMED OR ACQUIRED, OR ANY MATERIAL
ASSETS (INCLUDING ANY REAL PROPERTY) HAVING A VALUE IN EXCESS OF $25,000,000 ARE
ACQUIRED, THE LOAN PARTIES SHALL COMPLY WITH ALL APPLICABLE PROVISIONS OF
SECTION 5.15.
"Permitted Encumbrances" means:
(A)
LIENS IMPOSED BY LAW FOR TAXES THAT ARE NOT
YET DUE OR ARE BEING CONTESTED IN COMPLIANCE WITH SECTION 5.04;
(B)
LANDLORDS', CARRIERS', WAREHOUSEMEN'S,
MECHANICS', MATERIALMEN'S, REPAIRMEN'S AND OTHER LIKE LIENS IMPOSED BY LAW,
ARISING IN THE ORDINARY COURSE OF BUSINESS AND SECURING OBLIGATIONS THAT ARE NOT
OVERDUE BY MORE THAN 30 DAYS OR ARE BEING CONTESTED IN COMPLIANCE WITH
SECTION 5.04;
(C)
PLEDGES AND DEPOSITS MADE IN THE ORDINARY
COURSE OF BUSINESS IN COMPLIANCE WITH WORKERS' COMPENSATION, UNEMPLOYMENT
INSURANCE AND OTHER SOCIAL SECURITY LAWS OR REGULATIONS;
(D)
DEPOSITS TO SECURE THE PERFORMANCE OF BIDS,
TRADE CONTRACTS, LEASES, STATUTORY OBLIGATIONS, SURETY AND APPEAL BONDS,
PERFORMANCE BONDS AND OTHER OBLIGATIONS OF A LIKE NATURE, IN EACH CASE IN THE
ORDINARY COURSE OF BUSINESS;
(E)
JUDGMENT LIENS IN RESPECT OF JUDGMENTS THAT
DO NOT CONSTITUTE AN EVENT OF DEFAULT UNDER CLAUSE (K) OF ARTICLE VII; AND
(F)
EASEMENTS, ZONING RESTRICTIONS,
RIGHTS-OF-WAY AND SIMILAR ENCUMBRANCES ON REAL PROPERTY IMPOSED BY LAW OR
ARISING IN THE ORDINARY COURSE OF BUSINESS THAT DO NOT SECURE ANY MONETARY
OBLIGATIONS AND DO NOT MATERIALLY DETRACT FROM THE VALUE OF THE AFFECTED
PROPERTY OR INTERFERE WITH THE ORDINARY CONDUCT OF BUSINESS OF THE BORROWER OR
ANY SUBSIDIARY.
"Permitted Investments" means:
(A)
DIRECT OBLIGATIONS OF, OR OBLIGATIONS THE
PRINCIPAL OF AND INTEREST ON WHICH ARE UNCONDITIONALLY GUARANTEED BY, THE UNITED
STATES OF AMERICA OR CANADA (OR BY ANY AGENCY THEREOF TO THE EXTENT SUCH
OBLIGATIONS ARE BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF
AMERICA OR CANADA, AS APPLICABLE), IN EACH CASE MATURING WITHIN ONE (1) YEAR
FROM THE DATE OF ACQUISITION THEREOF;
(B)
INVESTMENTS IN COMMERCIAL PAPER MATURING
WITHIN 270 DAYS FROM THE DATE OF ACQUISITION THEREOF AND HAVING, AT SUCH DATE OF
ACQUISITION, THE HIGHEST CREDIT RATING OBTAINABLE FROM S&P OR FROM MOODY'S;