THEM IF CREATED OR ACQUIRED IN THE ORDINARY COURSE OF BUSINESS AND
PAYABLE OR DISCHARGEABLE IN ACCORDANCE WITH CUSTOMARY TERMS, (II) INVEST IN,
ACQUIRE AND HOLD CASH AND CASH EQUIVALENTS, (III) ENDORSE NEGOTIABLE INSTRUMENTS
HELD FOR COLLECTION IN THE ORDINARY COURSE OF BUSINESS OR (IV) MAKE LEASE,
UTILITY AND OTHER SIMILAR DEPOSITS IN THE ORDINARY COURSE OF BUSINESS;
(C)
HEDGING OBLIGATIONS PERMITTED PURSUANT TO SECTION 6.01(C);
(D)
LOANS AND ADVANCES TO DIRECTORS, EMPLOYEES AND OFFICERS OF
BORROWER AND THE SUBSIDIARIES FOR BONA FIDE BUSINESS PURPOSES AND TO PURCHASE
EQUITY INTERESTS OF HOLDINGS, IN AGGREGATE AMOUNT NOT TO EXCEED $100,000 AT ANY
TIME OUTSTANDING (CALCULATED WITHOUT REGARD TO WRITE-DOWNS OR WRITE-OFFS
THEREOF); PROVIDED THAT, FOLLOWING AN IPO OF ANY COMPANY, NO LOANS IN VIOLATION
OF SECTION 402 OF THE SARBANES-OXLEY ACT SHALL BE PERMITTED HEREUNDER;
(E)
INVESTMENTS BY (I) BORROWER IN ANY SUBSIDIARY GUARANTOR, (II) ANY
COMPANY IN BORROWER OR ANY SUBSIDIARY GUARANTOR, (III) A SUBSIDIARY OF BORROWER
THAT IS NOT A SUBSIDIARY GUARANTOR IN ANY OTHER SUBSIDIARY OF BORROWER THAT IS
NOT A SUBSIDIARY GUARANTOR AND (IV) ANY COMPANY IN ANY OTHER COMPANY; PROVIDED
THAT IN THE CASE OF A LOAN OR ADVANCE BY A COMPANY, SUCH INVESTMENT SHALL BE
PLEDGED BY SUCH COMPANY AS PLEDGED COLLATERAL PURSUANT TO THE COLLATERAL
DOCUMENTS;
(F)
(I) INVESTMENTS IN SECURITIES OF TRADE CREDITORS OR CUSTOMERS IN
THE ORDINARY COURSE OF BUSINESS THAT ARE RECEIVED IN SETTLEMENT OF BONA FIDE
DISPUTES OR PURSUANT TO ANY PLAN OF REORGANIZATION OR LIQUIDATION OR SIMILAR
ARRANGEMENT UPON THE BANKRUPTCY OR INSOLVENCY OF SUCH TRADE CREDITORS OR
CUSTOMERS AND (II) INVESTMENTS RECEIVED IN COMPROMISE OR RESOLUTION OF
LITIGATION, ARBITRATION OR OTHER DISPUTES IN THE ORDINARY COURSE OF BUSINESS;
(G)
MERGERS AND CONSOLIDATIONS IN COMPLIANCE WITH SECTION 6.05;
(H)
INVESTMENTS MADE BY BORROWER OR ANY SUBSIDIARY AS A RESULT OF
CONSIDERATION RECEIVED IN CONNECTION WITH AN ASSET SALE MADE IN COMPLIANCE WITH
SECTION 6.06;
(I)
ACQUISITIONS OF PROPERTY IN COMPLIANCE WITH SECTION 6.07 (OTHER
THAN SECTION 6.07(A)); AND
(J)
DIVIDENDS IN COMPLIANCE WITH SECTION 6.08.
72
Section 6.05
Mergers and Consolidations.
Wind up, liquidate or dissolve
its affairs or enter into any transaction of merger or consolidation (or agree
to do any of the foregoing at any time), except that the following shall be
permitted:
(A)
DISPOSITIONS OF ASSETS IN COMPLIANCE WITH SECTION 6.06 (OTHER THAN
SECTION 6.06(E) AND SECTION 6.06(F));
(B)
ANY SOLVENT COMPANY (OTHER THAN BORROWER) MAY MERGE OR CONSOLIDATE
WITH OR INTO BORROWER OR ANY SUBSIDIARY GUARANTOR (AS LONG AS BORROWER OR A
SUBSIDIARY GUARANTOR IS THE SURVIVING PERSON IN SUCH MERGER OR CONSOLIDATION
AND, IN THE CASE OF ANY SUBSIDIARY GUARANTOR, REMAINS A WHOLLY OWNED SUBSIDIARY
OF BORROWER); PROVIDED THAT THE LIEN ON AND SECURITY INTEREST IN SUCH PROPERTY
GRANTED OR TO BE GRANTED IN FAVOR OF THE COLLATERAL AGENT UNDER THE COLLATERAL
DOCUMENTS SHALL BE MAINTAINED OR CREATED IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.11 OR SECTION 5.12, AS APPLICABLE;
(C)
ANY SUBSIDIARY MAY DISSOLVE, LIQUIDATE OR WIND UP ITS AFFAIRS AT