DATE MAY BE CONSUMMATED ON OR PRIOR TO THE FUNDING DATE;
(D)
PURCHASES OF INVENTORY, EQUIPMENT AND REAL PROPERTY IN THE
ORDINARY COURSE OF BUSINESS;
(E)
INVESTMENTS PERMITTED BY SECTION 10.04; AND
(F)
ANY LOAN PARTY MAY ACQUIRE ALL OR SUBSTANTIALLY ALL THE ASSETS OF
A PERSON OR LINE OF BUSINESS, UNIT OR DIVISION OF SUCH PERSON, IN EACH CASE
PRIMARILY LOCATED IN THE UNITED STATES OR CANADA, OR NOT LESS THAN 100% OF THE
EQUITY INTERESTS OF SUCH A PERSON (OTHER THAN DIRECTORS' QUALIFYING SHARES) (IN
EACH CASE REFERRED TO HEREIN AS THE "ACQUIRED ENTITY"); PROVIDED THAT (I) THE
ACQUIRED ENTITY SHALL BE IN A SIMILAR LINE OF BUSINESS AS THAT OF HOLDINGS AND
ITS SUBSIDIARIES, (II) THE ACQUISITION SHALL NOT BE PRECEDED BY, OR EFFECTED
PURSUANT TO, AN UNSOLICITED TENDER OFFER OR PROXY SOLICITATION, (III) AT THE
TIME OF SUCH TRANSACTION BOTH BEFORE AND IMMEDIATELY AFTER GIVING EFFECT
THERETO, NO EVENT OF DEFAULT OR DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING,
(IV) THE PAYMENT CONDITIONS ARE SATISFIED AT THE TIME OF SUCH ACQUISITION AND
AFTER GIVING PRO FORMA EFFECT THERETO AND (V) UPON CONSUMMATION OF SUCH
ACQUISITION, THE ACQUIRED ENTITY AND EACH DOMESTIC SUBSIDIARY AND CANADIAN
SUBSIDIARY OF HOLDINGS THEREOF SHALL BECOME A LOAN PARTY IF SUCH ACQUIRED ENTITY
OR SUBSIDIARY WOULD BE A MATERIAL SUBSIDIARY BASED ON A PRO FORMA CALCULATION
FOR THE MOST RECENT PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS IN RESPECT OF
WHICH FINANCIAL STATEMENTS HAVE BEEN DELIVERED; AND HOLDINGS AND EACH BORROWER
SHALL COMPLY, AND SHALL CAUSE THEIR RESPECTIVE SUBSIDIARIES TO COMPLY, WITH THE
OTHER PROVISIONS OF SECTION 9.09 APPLICABLE TO SUCH ACQUIRED ENTITY OR
SUBSIDIARY, OR TO ITS EQUITY INTERESTS, SUBSTANTIALLY CONCURRENTLY WITH THE
CONSUMMATION OF SUCH ACQUISITION OR BY SUCH LATER DATE REASONABLY AGREED BY THE
ADMINISTRATIVE AGENT WITH RESPECT TO SPECIFIC COMPLIANCE ITEMS (ANY ACQUISITION
OF AN ACQUIRED ENTITY MEETING ALL OF THE CRITERIA SET FORTH IN THIS PARAGRAPH
(F) BEING REFERRED TO HEREIN AS A "PERMITTED ACQUISITION").
159
10.06.
Restricted Payments.
(a) Declare or make, directly or
indirectly, any Restricted Payment or set aside any amount for any such purpose.
(B)
NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (A) ABOVE:
(I)
THE TRANSACTIONS CONTEMPLATED BY THE PLAN OF REORGANIZATION TO
OCCUR ON THE FUNDING DATE MAY BE CONSUMMATED ON THE FUNDING DATE;
(II)
HOLDINGS MAY MAKE RESTRICTED PAYMENTS SO LONG AS THE PAYMENT
CONDITIONS ARE SATISFIED BOTH BEFORE AND AFTER GIVING EFFECT TO SUCH RESTRICTED
PAYMENTS;
(III)
HOLDINGS MAY MAKE RESTRICTED PAYMENTS FOR THE REPURCHASE,
RETIREMENT OR OTHER ACQUISITION FOR VALUE OF EQUITY INTERESTS OF HOLDINGS HELD
BY ANY FUTURE, PRESENT OR FORMER EMPLOYEE OR DIRECTOR OF HOLDINGS OR ANY OF ITS
SUBSIDIARIES PURSUANT TO ANY EMPLOYEE OR DIRECTOR EQUITY PLAN, EMPLOYEE OR
DIRECTOR STOCK OPTION PLAN OR ANY OTHER EMPLOYEE OR DIRECTOR BENEFIT PLAN OF
HOLDINGS OR ITS SUBSIDIARIES, PROVIDED THAT THE AGGREGATE AMOUNT OF SUCH
RESTRICTED PAYMENTS IN ANY FISCAL YEAR SHALL NOT EXCEED $5,000,000, PROVIDED
THAT AT THE TIME OF ANY SUCH RESTRICTED PAYMENT MADE PURSUANT TO
THIS