the Borrowers or any Domestic Subsidiary as
of the Closing Date, the Net Proceeds therefrom are used to prepay the Term
Loans to the extent required by Section 2.11(b).
SECTION 6.04.
Investments, Loans and Advances.
Purchase, hold or acquire
(including pursuant to any merger with a person that is not a Wholly Owned
Subsidiary immediately prior to such merger) any Equity Interests, evidences of
Indebtedness or other securities of, make or permit to exist any loans or
advances to or Guarantees of the obligations of, or make or permit to exist any
investment or any other interest in (each, an "Investment"), any other person,
except:
(A)
THE TRANSACTIONS;
(B)
(I) INVESTMENTS BY THE BORROWERS OR ANY SUBSIDIARY IN THE EQUITY
INTERESTS OF THE BORROWERS OR ANY SUBSIDIARY; (II) INTERCOMPANY LOANS FROM THE
BORROWERS OR ANY SUBSIDIARY TO THE BORROWERS OR ANY SUBSIDIARY; AND
(III) GUARANTEES BY THE BORROWERS OR ANY SUBSIDIARY LOAN PARTY OF INDEBTEDNESS
OTHERWISE EXPRESSLY PERMITTED HEREUNDER OF THE BORROWERS OR ANY SUBSIDIARY;
PROVIDED, THAT THE SUM OF (A) INVESTMENTS (VALUED AT THE TIME OF THE MAKING
THEREOF AND WITHOUT GIVING EFFECT TO ANY WRITE-DOWNS OR WRITE-OFFS THEREOF) MADE
AFTER THE CLOSING DATE BY THE LOAN PARTIES PURSUANT TO CLAUSE (I) IN
SUBSIDIARIES THAT ARE NOT SUBSIDIARY LOAN PARTIES, PLUS (B) NET INTERCOMPANY
LOANS MADE AFTER THE CLOSING DATE TO SUBSIDIARIES THAT ARE NOT SUBSIDIARY LOAN
PARTIES PURSUANT TO CLAUSE (II), PLUS (C) GUARANTEES OF INDEBTEDNESS AFTER THE
CLOSING DATE OF SUBSIDIARIES THAT ARE NOT SUBSIDIARY LOAN PARTIES PURSUANT TO
CLAUSE (III), SHALL NOT EXCEED AN AGGREGATE NET AMOUNT EQUAL TO (X) THE GREATER
OF (1) $75.0 MILLION AND (2) 4.5% OF CONSOLIDATED TOTAL ASSETS (PLUS ANY RETURN
OF CAPITAL ACTUALLY RECEIVED BY THE RESPECTIVE INVESTORS IN RESPECT OF
INVESTMENTS THERETOFORE MADE BY THEM PURSUANT TO THIS PARAGRAPH (B)); PLUS
(Y) THE PORTION, IF ANY, OF THE CUMULATIVE CREDIT ON THE DATE OF SUCH ELECTION
THAT THE BORROWERS ELECT TO APPLY TO THIS SECTION 6.04(B)(Y), SUCH ELECTION TO
BE SPECIFIED IN A WRITTEN NOTICE OF A RESPONSIBLE OFFICER OF THE BORROWERS
CALCULATING IN REASONABLE DETAIL THE AMOUNT OF CUMULATIVE CREDIT IMMEDIATELY
PRIOR TO SUCH ELECTION AND THE AMOUNT THEREOF ELECTED TO BE SO APPLIED;
PROVIDED, FURTHER, THAT INTERCOMPANY CURRENT LIABILITIES INCURRED IN THE
ORDINARY COURSE OF BUSINESS IN CONNECTION WITH THE CASH MANAGEMENT OPERATIONS OF
THE BORROWERS AND THE SUBSIDIARIES SHALL NOT BE INCLUDED IN CALCULATING THE
LIMITATION IN THIS PARAGRAPH AT ANY TIME;
(C)
PERMITTED INVESTMENTS AND INVESTMENTS THAT WERE PERMITTED
INVESTMENTS WHEN MADE;
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(D)
INVESTMENTS ARISING OUT OF THE RECEIPT BY THE BORROWERS OR ANY
SUBSIDIARY OF NON-CASH CONSIDERATION FOR THE SALE OF ASSETS PERMITTED UNDER
SECTION 6.05;
(E)
LOANS AND ADVANCES TO OFFICERS, DIRECTORS, EMPLOYEES OR
CONSULTANTS OF THE BORROWERS OR ANY SUBSIDIARY (I) IN THE ORDINARY COURSE OF
BUSINESS NOT TO EXCEED $15.0 MILLION IN THE AGGREGATE AT ANY TIME OUTSTANDING
(CALCULATED WITHOUT REGARD TO WRITE DOWNS OR WRITE OFFS THEREOF), (II) IN
RESPECT OF PAYROLL PAYMENTS AND EXPENSES IN THE ORDINARY