TO THE
EXTENT PERMITTED BY THE SUBORDINATION PROVISIONS THEREOF.
SECTION 1.3
FUNDAMENTAL CHANGES.
NO GROUP
MEMBER SHALL (A) MERGE, CONSOLIDATE OR AMALGAMATE WITH ANY PERSON, (B) ACQUIRE
ALL OR SUBSTANTIALLY ALL OF THE STOCK OR STOCK EQUIVALENTS OF ANY PERSON OR (C)
ACQUIRE ANY BRAND OR ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF ANY PERSON OR ALL
OR SUBSTANTIALLY ALL OF THE ASSETS CONSTITUTING ANY LINE OF BUSINESS, DIVISION,
BRANCH, OPERATING DIVISION OR OTHER UNIT OPERATION OF ANY PERSON, IN EACH CASE
EXCEPT FOR THE FOLLOWING:
(X) TO CONSUMMATE ANY PERMITTED ACQUISITION, (Y) THE
MERGER, CONSOLIDATION OR AMALGAMATION OF ANY SUBSIDIARY OF THE BORROWER INTO ANY
LOAN PARTY AND (Z) THE MERGER, CONSOLIDATION OR AMALGAMATION OF ANY GROUP MEMBER
(OTHER THAN HOLDINGS) FOR THE SOLE PURPOSE, AND WITH THE SOLE MATERIAL EFFECT,
OF CHANGING ITS STATE OF ORGANIZATION WITHIN THE UNITED STATES; PROVIDED,
HOWEVER, THAT (A) IN THE CASE OF ANY MERGER, CONSOLIDATION OR AMALGAMATION
INVOLVING THE BORROWER, THE BORROWER SHALL BE THE SURVIVING PERSON AND (B) IN
THE CASE OF ANY MERGER, CONSOLIDATION OR AMALGAMATION INVOLVING ANY OTHER LOAN
PARTY, A LOAN PARTY SHALL BE THE SURVIVING CORPORATION AND ALL ACTIONS REQUIRED
TO MAINTAIN THE PERFECTION OF THE LIEN OF THE ADMINISTRATIVE AGENT ON THE STOCK
OR PROPERTY OF SUCH LOAN PARTY SHALL HAVE BEEN MADE.
SECTION 1.4
CHANGE IN NATURE OF BUSINESS.
(A) NO GROUP MEMBER (OTHER THAN HOLDINGS) SHALL CARRY ON ANY BUSINESS,
OPERATIONS OR ACTIVITIES (WHETHER DIRECTLY,
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THROUGH A JOINT VENTURE, IN CONNECTION WITH A PERMITTED ACQUISITION OR
OTHERWISE) SUBSTANTIALLY DIFFERENT FROM THOSE CARRIED ON BY THE BORROWER AND ITS
SUBSIDIARIES AT THE DATE HEREOF AND BUSINESS, OPERATIONS AND ACTIVITIES
REASONABLY RELATED THERETO.
(b)
Holdings shall not engage in any business,
operations or activity, or hold any property, other than (i) holding Stock and
Stock Equivalents of the Borrower, (ii) issuing, selling and redeeming its own
Stock, (ii) paying taxes, (iii) holding directors' and shareholders' meetings,
preparing corporate and similar records and other activities required to
maintain its separate corporate or other legal structure, (iv) preparing reports
to, and preparing and making notices to and filings with, Governmental
Authorities and to its holders of Stock and Stock Equivalents, (v) receiving,
and holding proceeds of, Restricted Payments from the Borrower and its
Subsidiaries and distributing the proceeds thereof to the extent permitted in
Section 8.5 and (vi) as necessary to consummate any Permitted Acquisition.
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SECTION 1.5
TRANSACTIONS WITH AFFILIATES.
NO GROUP MEMBER SHALL, EXCEPT AS OTHERWISE EXPRESSLY PERMITTED HEREIN, ENTER
INTO ANY OTHER TRANSACTION DIRECTLY OR INDIRECTLY WITH, OR FOR THE BENEFIT OF,
ANY AFFILIATE OF THE BORROWER THAT IS NOT A LOAN PARTY (INCLUDING GUARANTY
OBLIGATIONS WITH RESPECT TO ANY OBLIGATION OF ANY SUCH AFFILIATE), EXCEPT FOR
(A) TRANSACTIONS IN THE ORDINARY COURSE OF BUSINESS ON A BASIS NO LESS FAVORABLE
TO SUCH GROUP MEMBER AS WOULD BE OBTAINED IN A COMPARABLE ARM'S LENGTH
TRANSACTION WITH A PERSON NOT AN AFFILIATE OF THE BORROWER, (B) RESTRICTED
PAYMENTS, THE PROCEEDS OF WHICH,