MERGE INTO OR CONSOLIDATE WITH ANY PERSON OR PERMIT ANY
PERSON TO MERGE INTO IT, OR LIQUIDATE, WIND UP OR DISSOLVE ITSELF (OR SUFFER ANY
LIQUIDATION OR DISSOLUTION), OR DISPOSE OF ALL OR SUBSTANTIALLY ALL OF ITS
PROPERTY OR BUSINESS WHICH WOULD RESULT IN THE DISPOSITION OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE BORROWER AND ITS SUBSIDIARIES, TAKEN AS A
WHOLE, EXCEPT:
(I)
MERGERS OR CONSOLIDATION CONSTITUTING PERMITTED INVESTMENTS UNDER
SECTION 5.02(E) (OTHER THAN SECTION 5.02(E)(II)) OR ASSET DISPOSITIONS PERMITTED
PURSUANT TO SECTION 5.02(F);
(II)
MERGERS, CONSOLIDATIONS, LIQUIDATIONS OR DISSOLUTIONS (A) BY ANY LOAN
PARTY (OTHER THAN THE BORROWER) WITH OR INTO ANY OTHER LOAN PARTY, (B) BY ANY
NON-LOAN PARTY WITH OR INTO ANY LOAN PARTY OR (C) BY ANY NON-LOAN PARTY WITH OR
INTO ANY OTHER NON-LOAN PARTY; PROVIDED THAT, IN THE CASE OF ANY SUCH MERGER OR
CONSOLIDATION, THE PERSON FORMED BY SUCH MERGER OR CONSOLIDATION SHALL BE A
WHOLLY OWNED SUBSIDIARY OF THE BORROWER, AND PROVIDED FURTHER THAT IN THE CASE
OF ANY SUCH MERGER OR CONSOLIDATION (X) TO WHICH THE BORROWER IS A PARTY, THE
PERSON FORMED BY SUCH MERGER OR CONSOLIDATION SHALL BE THE BORROWER AND (Y) TO
WHICH A LOAN PARTY (OTHER THAN THE BORROWER) IS A PARTY (OTHER THAN A MERGER OR
CONSOLIDATION MADE IN ACCORDANCE
57
WITH SUBCLAUSE (B) ABOVE), THE PERSON FORMED BY SUCH MERGER OR CONSOLIDATION
SHALL BE A LOAN PARTY ON THE SAME TERMS; AND
(III)
THE DISSOLUTION, LIQUIDATION OR WINDING UP OF ANY LOAN PARTY OTHER
THAN THE BORROWER, PROVIDED THAT SUCH DISSOLUTION, LIQUIDATION OR WINDING UP
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT AND THE
ASSETS OF THE PERSON SO DISSOLVED, LIQUIDATED OR WOUND-UP ARE DISTRIBUTED TO THE
BORROWER OR TO ANOTHER LOAN PARTY.
(I)
ACCOUNTING CHANGES.
MAKE OR PERMIT ANY CHANGES IN (I) ACCOUNTING
POLICIES OR REPORTING PRACTICES, EXCEPT AS PERMITTED OR REQUIRED BY GAAP, OR
(II) ITS FISCAL YEAR.
(J)
NEGATIVE PLEDGE; PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
EXCEPT AS MAY BE CONTEMPLATED OR EXPRESSLY PERMITTED HEREUNDER, ENTER INTO, OR
ALLOW ANY SUBSIDIARY (OTHER THAN ANY SPECIFIED SUBSIDIARY) TO ENTER INTO, ANY
AGREEMENT PROHIBITING OR CONDITIONING THE ABILITY OF THE BORROWER OR ANY SUCH
SUBSIDIARY TO (I) CREATE ANY LIEN UPON ANY OF ITS PROPERTY OR ASSETS, (II) MAKE
DIVIDENDS TO, OR PAY ANY INDEBTEDNESS OWED TO, ANY LOAN PARTY, (III) MAKE LOANS
OR ADVANCES TO, OR OTHER INVESTMENTS IN, ANY LOAN PARTY, OR (IV) TRANSFER ANY OF
ITS ASSETS TO ANY LOAN PARTY OTHER THAN (A) ANY SUCH AGREEMENT WITH OR IN FAVOR
OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR THE LENDERS; (B) IN
CONNECTION WITH (1) ANY AGREEMENT EVIDENCING ANY LIENS PERMITTED PURSUANT TO
SECTION 5.02(A)(IV) (SO LONG AS SUCH PROHIBITIONS OR CONDITIONS RELATE SOLELY TO
THE ASSETS THAT ARE THE SUBJECT OF SUCH LIENS) OR (2) ANY DEBT PERMITTED TO BE
INCURRED UNDER SECTIONS 5.02(B)(V) ABOVE (SO LONG AS SUCH PROHIBITIONS OR
CONDITIONS ARE LIMITED TO THE ASSETS SECURING SUCH DEBT; (C) ANY AGREEMENT