(x)
above.
7.8
Limitation on Investments.
Make any advance, loan, extension of
credit or capital contribution to, or purchase any Capital Stock, bonds, notes,
debentures or other debt securities of, or any assets substantially constituting
an ongoing business from, or make any other investment in, any other Person (all
of the foregoing, "Investments"), except:
(A)
EXTENSIONS OF TRADE CREDIT IN THE ORDINARY COURSE OF BUSINESS;
(B)
INVESTMENTS IN CASH EQUIVALENTS;
89
(C)
GUARANTEE OBLIGATIONS PERMITTED BY SECTION 7.2;
(D)
LOANS AND ADVANCES TO EMPLOYEES OF HOLDINGS, THE BORROWER OR ANY
SUBSIDIARIES OF THE BORROWER IN THE ORDINARY COURSE OF BUSINESS (INCLUDING FOR
TRAVEL, ENTERTAINMENT AND RELOCATION EXPENSES) IN AN AGGREGATE AMOUNT FOR
HOLDINGS, THE BORROWER AND SUBSIDIARIES OF THE BORROWER NOT TO EXCEED $1,000,000
AT ANY ONE TIME OUTSTANDING;
(E)
INVESTMENTS MADE WITH THE PROCEEDS OF ANY REINVESTMENT DEFERRED
AMOUNT;
(F)
INVESTMENTS BY (I) HOLDINGS, THE BORROWER OR ANY OF ITS
SUBSIDIARIES IN THE BORROWER OR ANY SUBSIDIARY GUARANTOR; (II) ANY SUBSIDIARY
THAT IS NOT A SUBSIDIARY GUARANTOR IN ANY OTHER SUBSIDIARY; AND (III)
INVESTMENTS BY THE BORROWER OR ANY SUBSIDIARY GUARANTOR IN ANY FOREIGN
SUBSIDIARY (OR KMEMC) IN AN AGGREGATE AMOUNT (FOR ALL INVESTMENTS PERMITTED
PURSUANT TO THIS CLAUSE (F)(III)) NOT TO EXCEED $25,000,000 (LESS THE AGGREGATE
AMOUNT OF ANY CANCELLED FOREIGN DEBT THAT WAS PERMITTED TO HAVE BEEN OUTSTANDING
PURSUANT TO THIS CLAUSE (F)(III) AND THAT WAS CANCELLED PURSUANT TO SECTION
7.5(K)) AT ANY ONE TIME OUTSTANDING;
(G)
IN ADDITION TO INVESTMENTS OTHERWISE EXPRESSLY PERMITTED BY THIS
SECTION, INVESTMENTS BY THE BORROWER OR ANY SUBSIDIARY THEREOF CONSTITUTING AN
ACQUISITION OF ANY PERSON ENGAGED PRIMARILY IN, OR ASSETS SUBSTANTIALLY
CONSTITUTING AN ONGOING BUSINESS CONSISTING PRIMARILY OF, ONE OR MORE LINES OF
BUSINESSES PERMITTED UNDER SECTION 7.15 ("PERMITTED ACQUISITIONS"); PROVIDED
THAT:
(I)
IMMEDIATELY PRIOR TO AND AFTER GIVING AFFECT TO ANY SUCH
PERMITTED ACQUISITION, NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING AND THE BORROWER SHALL HAVE CERTIFIED THE SAME TO THE ADMINISTRATIVE
AGENT IN WRITING;
(II)
IF SUCH PERMITTED ACQUISITION IS STRUCTURED AS A STOCK
ACQUISITION, THEN EITHER (A) THE PERSON SO ACQUIRED BECOMES A SUBSIDIARY OF
BORROWER OR (B) SUCH PERSON IS MERGED WITH AND INTO EITHER THE BORROWER OR A
SUBSIDIARY THEREOF (WITH THE BORROWER OR SUCH SUBSIDIARY BEING THE SURVIVING
PERSON IN SUCH MERGER);
(III)
ALL OF THE PROVISIONS OF SECTION 6.9 HAVE BEEN OR WILL BE
COMPLIED WITH IN ALL MATERIAL RESPECTS IN RESPECT OF SUCH PERMITTED ACQUISITION;
(IV)
AFTER GIVING PRO FORMA EFFECT TO THE PROPOSED PERMITTED
ACQUISITION IN ACCORDANCE WITH SECTION 7.1(E), THE BORROWER SHALL BE IN
COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH IN SECTION 7.1;
(V)
THE CONSIDERATION FOR SUCH PERMITTED ACQUISITION SHALL BE LIMITED
TO A MAXIMUM AMOUNT OF $25,000,000 PER PERMITTED ACQUISITION AND $75,000,000 FOR
ALL PERMITTED ACQUISITIONS DURING THE TERM OF THIS AGREEMENT; PROVIDED, HOWEVER,
THAT IN EACH CASE, SUCH CALCULATION SHALL EXCLUDE ANY PORTION OF CONSIDERATION
FUNDED WITH THE PROCEEDS OF THE ISSUANCE OF CAPITAL STOCK OF HOLDINGS (SUBJECT
TO SECTION 8(K))