SUBSIDIARIES TAKEN AS A WHOLE;
(K) LIENS ARISING BY VIRTUE OF UCC FINANCING STATEMENT FILINGS (OR SIMILAR
FILINGS UNDER APPLICABLE LAW) REGARDING OPERATING LEASES ENTERED INTO BY
HOLDINGS OR ANY SUBSIDIARY IN THE ORDINARY COURSE OF BUSINESS;
(L)LIENS CONSISTING OF INTERESTS OF LESSORS UNDER CAPITAL LEASES PERMITTED UNDER
SECTION 6.01;
(M) LIENS ON ASSETS OF FOREIGN SUBSIDIARIES SECURING INDEBTEDNESS PERMITTED BY
SECTION 6.01(L);
(N)
LIENS GRANTED BY A SUBSIDIARY THAT IS NOT A LOAN PARTY IN FAVOR OF THE
BORROWER OR ANOTHER LOAN PARTY IN RESPECT OF INDEBTEDNESS OWED BY SUCH
SUBSIDIARY; AND
(O)
OTHER LIENS ON EXCLUDED ASSETS SECURING INDEBTEDNESS OR OTHER OBLIGATIONS
IN AN AGGREGATE PRINCIPAL AMOUNT NOT EXCEEDING $1,000,000 AT ANY TIME
OUTSTANDING.
Notwithstanding the foregoing, none of the Liens permitted pursuant to this
Section 6.02 may at any time attach to any Loan Party's (1) Accounts (including,
without limitation, Credit Card Account Receivables), other than those permitted
under clause (a) of the definition of Permitted Encumbrance and clause (a) above
and (2) Inventory, other than those permitted under clauses (a) and (b) of the
definition of Permitted Encumbrance and clause (a) above.
SECTION 6.03.
FUNDAMENTAL CHANGES.
(A)
NO LOAN PARTY WILL, NOR WILL IT PERMIT
ANY SUBSIDIARY TO, MERGE INTO OR CONSOLIDATE WITH ANY OTHER PERSON, OR PERMIT
ANY OTHER PERSON TO MERGE INTO OR CONSOLIDATE WITH IT, OR LIQUIDATE OR DISSOLVE,
EXCEPT THAT, IF AT THE TIME THEREOF AND IMMEDIATELY AFTER GIVING EFFECT THERETO
NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING (I) ANY SUBSIDIARY OF
HOLDINGS MAY MERGE INTO THE BORROWER IN A TRANSACTION IN WHICH THE BORROWER IS
THE SURVIVING CORPORATION, (II) ANY SUBSIDIARY OF HOLDINGS (OTHER THAN THE
BORROWER) MAY MERGE INTO ANY LOAN PARTY IN A TRANSACTION IN WHICH THE SURVIVING
ENTITY IS A LOAN PARTY AND (III) ANY SUBSIDIARY THAT IS NOT A LOAN PARTY MAY
LIQUIDATE OR DISSOLVE IF THE BORROWER DETERMINES IN GOOD FAITH THAT SUCH
LIQUIDATION OR DISSOLUTION IS IN THE BEST INTERESTS OF THE BORROWER AND IS NOT
MATERIALLY DISADVANTAGEOUS TO THE LENDERS; PROVIDED THAT ANY SUCH MERGER
INVOLVING A PERSON THAT IS NOT A WHOLLY OWNED SUBSIDIARY IMMEDIATELY PRIOR TO
SUCH MERGER SHALL NOT BE PERMITTED UNLESS ALSO PERMITTED BY SECTION 6.04.
67
(B)
NO LOAN PARTY WILL, NOR WILL IT PERMIT ANY OF ITS SUBSIDIARIES TO, ENGAGE
IN ANY BUSINESS OTHER THAN BUSINESSES OF THE TYPE CONDUCTED BY THE BORROWER AND
ITS SUBSIDIARIES ON THE DATE OF EXECUTION OF THIS AGREEMENT AND BUSINESSES
REASONABLY RELATED THERETO.
(C)
HOLDINGS WILL NOT ENGAGE IN ANY BUSINESS OR ACTIVITY OTHER THAN BUSINESS
CONDUCTED AS OF THE EFFECTIVE DATE (AND ACTIVITIES INCIDENTAL THERETO) AS THE
PARENT COMPANY OF THE BORROWER AND THE OTHER SUBSIDIARIES, AS A PUBLIC COMPANY
UNDER SECURITIES LAWS.
SECTION 6.04.
INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS.
NO
LOAN PARTY WILL, NOR WILL IT PERMIT ANY SUBSIDIARY TO, PURCHASE, HOLD OR ACQUIRE
(INCLUDING PURSUANT TO ANY MERGER WITH ANY PERSON THAT WAS NOT A LOAN PARTY AND
A WHOLLY OWNED SUBSIDIARY PRIOR TO