COURSE OF
BUSINESS;
(VI)
ARISING OUT OF PURCHASE MONEY MORTGAGES OR OTHER
LIENS ON PROPERTY ACQUIRED BY THE BORROWER OR ANY MATERIAL SUBSIDIARY IN THE
ORDINARY COURSE OF BUSINESS TO SECURE THE PURCHASE PRICE OF SUCH PROPERTY OR TO
SECURE INDEBTEDNESS INCURRED SOLELY FOR THE PURPOSE OF FINANCING THE ACQUISITION
OF ANY SUCH PROPERTY TO BE SUBJECT TO SUCH LIENS, OR LIENS EXISTING ON ANY SUCH
PROPERTY AT THE TIME OF ACQUISITION, OR EXTENSIONS, RENEWALS OR REPLACEMENTS OF
ANY OF THE FOREGOING FOR THE SAME OR A LESSER AMOUNT; PROVIDED THAT NO SUCH LIEN
SHALL EXCEED THE FAIR MARKET VALUE OF THE PROPERTY ACQUIRED (AS DETERMINED AT
THE TIME OF PURCHASE), OR EXTEND TO OR COVER ANY PROPERTY OTHER THAN THE
PROPERTY BEING ACQUIRED, AND NO SUCH EXTENSION, RENEWAL OR
36
REPLACEMENT SHALL EXTEND TO OR COVER ANY PROPERTY NOT THERETOFORE SUBJECT TO THE
LIEN BEING EXTENDED, RENEWED OR REPLACED;
(VII)
CONSTITUTING ATTACHMENT, JUDGMENT AND OTHER
SIMILAR LIENS ARISING IN CONNECTION WITH COURT PROCEEDINGS; PROVIDED THAT THE
EXECUTION OR OTHER ENFORCEMENT OF SUCH LIENS IS EFFECTIVELY STAYED AND THE
CLAIMS SECURED THEREBY ARE BEING ACTIVELY CONTESTED IN GOOD FAITH BY PROPER
PROCEEDINGS OR THE PAYMENT OF WHICH IS COVERED IN FULL (SUBJECT TO CUSTOMARY
DEDUCTIBLE AMOUNTS) BY INSURANCE MAINTAINED WITH RESPONSIBLE AND REPUTABLE
INSURANCE COMPANIES OR ASSOCIATIONS;
(VIII)
CONSTITUTING EASEMENTS, RESTRICTIONS AND OTHER
SIMILAR ENCUMBRANCES ARISING IN THE ORDINARY COURSE OF BUSINESS, WHICH IN THE
AGGREGATE DO NOT MATERIALLY ADVERSELY AFFECT THE BORROWER'S OR ANY MATERIAL
SUBSIDIARY'S USE OF ITS PROPERTIES; OR
(IX)
ON CASH COLLATERAL ACCOUNTS ESTABLISHED BY THE
BORROWER TO SECURE INVESTMENTS AND GUARANTEES.
(B)
MERGERS, ETC.
MERGE OR CONSOLIDATE WITH ANY PERSON, UNLESS:
(I)
IN THE CASE OF ANY SUCH MERGER OR CONSOLIDATION
INVOLVING THE BORROWER, THE SURVIVING OR RESULTING ENTITY IS (A) THE BORROWER OR
(B) WITH THE WRITTEN CONSENT OF ALL OF THE LENDERS, A SUBSIDIARY OF THE
BORROWER; PROVIDED THAT SUCH SUBSIDIARY OF THE BORROWER EXPRESSLY ASSUMES IN
WRITING ALL OF THE OBLIGATIONS OF THE BORROWER UNDER THIS AGREEMENT AND THE
OTHER DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION THEREWITH AND EXECUTES AND
DELIVERS SUCH OTHER DOCUMENTS, INSTRUMENTS, CERTIFICATES AND OPINIONS AS THE
ADMINISTRATIVE AGENT MAY REASONABLY REQUEST;
(II)
IN THE CASE OF ANY SUCH MERGER OR CONSOLIDATION
INVOLVING A MATERIAL SUBSIDIARY, THE SURVIVING OR RESULTING ENTITY IS A
WHOLLY-OWNED SUBSIDIARY OF THE BORROWER; AND
(III)
IMMEDIATELY AFTER GIVING EFFECT THERETO NO EVENT
OF DEFAULT OR UNMATURED DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
(C)
SALE OF ASSETS, ETC.
SELL, TRANSFER, LEASE, ASSIGN OR OTHERWISE
CONVEY OR DISPOSE OF ASSETS (WHETHER NOW OWNED OR HEREAFTER ACQUIRED) TO AN
UNRELATED THIRD PARTY, IN ANY SINGLE OR SERIES OF TRANSACTIONS, WHETHER OR NOT
RELATED, EXCEPT:
(I)
THE SALE OF ELECTRICITY OR NATURAL GAS AND
RELATED AND ANCILLARY SERVICES, OTHER COMMODITIES, AND ANY OTHER ASSETS IN THE
ORDINARY COURSE OF BUSINESS;
(II)
THE SALE OR OTHER DISPOSITION OF OBSOLETE OR WORN
OUT PROPERTY AND OTHER ASSETS (INCLUDING INVENTORY) IN THE ORDINARY COURSE OF
BUSINESS;
(III)
THE SALE