$40,000,000.
(B)
NOTWITHSTANDING ANYTHING IN CLAUSE (A) OF THIS SECTION 6.02, THE BORROWER
MAY NOT GRANT OR OTHERWISE PERMIT TO EXIST LIENS ON ANY CASH OR CASH EQUIVALENTS
THAT SECURE THE SENIOR OBLIGATIONS OR ARE OTHERWISE HELD BY THE LENDERS OR THE
ADMINISTRATIVE AGENT PURSUANT TO SECTION 2.05(K) OR 9.15.
SECTION 6.03.
FUNDAMENTAL CHANGES.
WITHOUT LIMITING THE RESTRICTIONS ON
BUSINESS ACQUISITIONS SET FORTH IN SECTION 6.04, THE BORROWER WILL NOT, AND WILL
NOT PERMIT ANY SUBSIDIARY LOAN PARTY (OR, PRIOR TO THE BORROWING BASE DATE,
HOLDINGS OR ANY
85
OF ITS SUBSIDIARIES) 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 DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING (I) ANY PERSON
MAY MERGE INTO THE BORROWER IN A TRANSACTION IN WHICH THE BORROWER IS THE
SURVIVING CORPORATION, PROVIDED, THAT IF SUCH OTHER PERSON IS A SUBSIDIARY LOAN
PARTY, IT SHALL HAVE NO ASSETS THAT CONSTITUTE SENIOR COLLATERAL, (II) ANY
PERSON MAY MERGE INTO A SUBSIDIARY LOAN PARTY IN A TRANSACTION IN WHICH SUCH
SUBSIDIARY LOAN PARTY IS THE SURVIVING CORPORATION AND (III) ANY SUBSIDIARY LOAN
PARTY MAY LIQUIDATE OR DISSOLVE IF SUCH LIQUIDATION OR DISSOLUTION IS NOT
MATERIALLY DISADVANTAGEOUS TO THE LENDERS; PROVIDED THAT (A) ANY SUCH MERGER
INVOLVING A PERSON THAT IS NOT A WHOLLY-OWNED SUBSIDIARY IMMEDIATELY PRIOR TO
SUCH MERGER SHALL NOT BE PERMITTED TO ENGAGE IN SUCH MERGER UNLESS ALSO
PERMITTED BY SECTION 6.04 AND (B) THE BORROWER AND THE APPLICABLE SUBSIDIARY
LOAN PARTY SHALL COMPLY WITH THE PROVISIONS OF SECTION 5.11 WITH RESPECT TO ANY
SUBSIDIARY ACQUIRED PURSUANT TO THIS SECTION 6.03.
SECTION 6.04.
INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS.
THE
BORROWER WILL NOT, AND WILL NOT PERMIT ANY OF THE SUBSIDIARIES TO, MAKE ANY
INVESTMENT IN, OR GUARANTEE ANY OBLIGATIONS OF, ANY OTHER PERSON, OR PURCHASE OR
OTHERWISE ACQUIRE (IN ONE TRANSACTION OR A SERIES OF TRANSACTIONS) ANY ASSETS OF
ANY OTHER PERSON CONSTITUTING A BUSINESS UNIT, EXCEPT:
(I) PERMITTED INVESTMENTS;
(II) INVESTMENTS OF THE BORROWER, THE SUBSIDIARY LOAN PARTIES AND HOLDINGS AND
ITS SUBSIDIARIES SET FORTH ON SCHEDULE 6.04;
(III) GUARANTEES OF INDEBTEDNESS AND/OR GUARANTEES CONSISTING OF INDEBTEDNESS
PERMITTED BY SECTION 6.01;
(IV) INVESTMENTS RECEIVED IN CONNECTION WITH THE BANKRUPTCY OR REORGANIZATION
OF, OR SETTLEMENT OF DELINQUENT ACCOUNTS AND DISPUTES WITH, CUSTOMERS AND
SUPPLIERS, IN EACH CASE IN THE ORDINARY COURSE OF BUSINESS;
(V) INVESTMENTS BY (A) THE BORROWER OR ANY SUBSIDIARY LOAN PARTY IN SUBSIDIARY
LOAN PARTIES AND (B) PRIOR TO THE BORROWING BASE DATE, HOLDINGS IN ITS
SUBSIDIARIES AND SUBSIDIARIES OF HOLDINGS IN HOLDINGS OR ANY OTHER SUBSIDIARY OF
HOLDINGS; PROVIDED THAT THE BORROWER AND SUCH SUBSIDIARY LOAN PARTY OR HOLDINGS
AND SUCH SUBSIDIARY OF HOLDINGS, AS THE CASE MAY BE, SHALL COMPLY WITH THE
APPLICABLE PROVISIONS OF SECTION 5.11 WITH RESPECT TO ANY NEWLY FORMED
SUBSIDIARY;
(VI) INVESTMENTS CONSISTING OF NON-CASH CONSIDERATION RECEIVED IN CONNECTION
WITH ANY ASSET SALE PERMITTED