AND
(D) THE BORROWER SHALL HAVE DELIVERED A CERTIFICATE OF A FINANCIAL OFFICER,
CERTIFYING AS TO THE FOREGOING AND CONTAINING REASONABLY DETAILED CALCULATIONS
IN SUPPORT THEREOF, IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE
AGENT (ANY ACQUISITION OF AN ACQUIRED ENTITY MEETING ALL THE CRITERIA OF THIS
SECTION 6.04(G) BEING REFERRED TO HEREIN AS A "PERMITTED ACQUISITION"); AND
(H) IN ADDITION TO INVESTMENTS PERMITTED BY PARAGRAPHS (A) THROUGH (G) ABOVE,
ADDITIONAL INVESTMENTS, LOANS AND ADVANCES BY THE BORROWER AND THE SUBSIDIARIES
SO LONG AS THE AGGREGATE AMOUNT INVESTED, LOANED OR ADVANCED PURSUANT TO THIS
PARAGRAPH (H) (DETERMINED WITHOUT REGARD TO ANY WRITE-DOWNS OR WRITE-OFFS OF
SUCH INVESTMENTS, LOANS AND ADVANCES) DOES NOT EXCEED $10,000,000 IN THE
AGGREGATE (PLUS ANY RETURNS OF CAPITAL ACTUALLY RECEIVED BY THE BORROWER OR THE
SUBSIDIARY INVESTOR IN RESPECT OF INVESTMENTS THERETOFORE MADE BY IT PURSUANT TO
THIS PARAGRAPH (H)).
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS. (A)
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
50
TRANSACTION OR IN A SERIES OF TRANSACTIONS) ALL OR SUBSTANTIALLY ALL THE ASSETS
(WHETHER NOW OWNED OR HEREAFTER ACQUIRED) OF THE BORROWER OR LESS THAN ALL THE
EQUITY INTERESTS OF ANY SUBSIDIARY, OR PURCHASE, LEASE OR OTHERWISE ACQUIRE (IN
ONE TRANSACTION OR A SERIES OF TRANSACTIONS) ALL OR ANY SUBSTANTIAL PART OF THE
ASSETS OF ANY OTHER PERSON, EXCEPT THAT (I) THE BORROWER AND ANY SUBSIDIARY
MAY PURCHASE AND SELL INVENTORY IN THE ORDINARY COURSE OF BUSINESS AND (II) IF
AT THE TIME THEREOF AND IMMEDIATELY AFTER GIVING EFFECT THERETO NO EVENT OF
DEFAULT OR DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING (X) ANY SUBSIDIARY
MAY MERGE INTO THE BORROWER OR A WHOLLY OWNED SUBSIDIARY IN A TRANSACTION IN
WHICH THE SURVIVING ENTITY IS THE BORROWER OR A WHOLLY OWNED SUBSIDIARY AND NO
PERSON OTHER THAN THE BORROWER OR A WHOLLY OWNED SUBSIDIARY RECEIVES ANY
CONSIDERATION (PROVIDED THAT IF ANY PARTY TO ANY SUCH TRANSACTION IS A LOAN
PARTY, THE SURVIVING ENTITY OF SUCH TRANSACTION SHALL BE A LOAN PARTY) AND (Y)
THE BORROWER AND THE SUBSIDIARIES MAY MAKE INVESTMENTS AND ACQUISITIONS
PERMITTED BY SECTION 6.04.
(B)
MAKE ANY ASSET SALE NOT OTHERWISE PERMITTED UNDER PARAGRAPH (A) ABOVE
UNLESS (I) SUCH ASSET SALE IS FOR CONSIDERATION AT LEAST 75% OF WHICH IS CASH OR
CASH EQUIVALENTS PROMPTLY CONVERTED TO CASH AND (II) SUCH CONSIDERATION IS AT
LEAST EQUAL TO THE FAIR MARKET VALUE OF THE ASSETS BEING SOLD, TRANSFERRED,
LEASED OR DISPOSED OF.
SECTION 6.06. RESTRICTED PAYMENTS; RESTRICTIVE AGREEMENTS. (A)
DECLARE OR MAKE,
OR AGREE TO DECLARE OR MAKE, DIRECTLY OR INDIRECTLY, ANY RESTRICTED PAYMENT
(INCLUDING PURSUANT TO ANY SYNTHETIC PURCHASE AGREEMENT), OR INCUR ANY
OBLIGATION (CONTINGENT OR OTHERWISE) TO DO SO; PROVIDED, HOWEVER, THAT (I) ANY
SUBSIDIARY MAY DECLARE AND PAY DIVIDENDS OR MAKE OTHER DISTRIBUTIONS RATABLY TO
ITS EQUITY HOLDERS, (II) THE BORROWER AND THE SUBSIDIARIES MAY PAY DIVIDENDS IN
RESPECT OF