financial covenants set forth in this Section 5.02(a) on a
pro forma basis. In calculating financial covenants on a pro-forma basis, the
Borrower will (A) exclude income, Debt and other charges associated with the
assets subject to such sale and (B) give effect to the application of the net
proceeds generated by such sale; provided, that if the Borrower has not applied
the net sale proceeds in the manner contemplated in the calculations made
pursuant to clause (B) prior to the immediately following Covenant Compliance
Date, the Borrower will not be permitted to continue to give effect to the
application of such net sale proceeds.
(B)
LIMITATION ON FUNDAMENTAL CHANGES.
ENTER INTO ANY MERGER,
CONSOLIDATION OR AMALGAMATION, OR LIQUIDATE, WIND UP OR DISSOLVE ITSELF (OR
SUFFER ANY LIQUIDATION OR DISSOLUTION), OR CONVEY, SELL, LEASE, ASSIGN, TRANSFER
OR OTHERWISE DISPOSE OF, ALL OR SUBSTANTIALLY ALL ITS PROPERTY, BUSINESS OR
ASSETS, EXCEPT ANY WHOLLY-OWNED SUBSIDIARY MAY BE MERGED OR CONSOLIDATED WITH OR
INTO THE BORROWER (PROVIDED THAT THE BORROWER SHALL BE THE CONTINUING OR
SURVIVING CORPORATION).
(C)
LIMITATION ON TRANSACTIONS WITH AFFILIATES.
EXCEPT FOR
TRANSACTIONS PROVIDING SERVICES (INCLUDING GROUP PURCHASES OF EQUIPMENT OR
ENERGY) AT COST TO ANY SUBSIDIARY OR AFFILIATE, ENTER INTO, OR PERMIT ANY
SUBSIDIARY TO ENTER INTO, ANY TRANSACTION, INCLUDING ANY PURCHASE, SALE, LEASE
OR EXCHANGE OF PROPERTY OR THE RENDERING OF ANY SERVICE, WITH ANY AFFILIATE
UNLESS SUCH TRANSACTION IS UPON FAIR AND REASONABLE TERMS NO LESS FAVORABLE TO
THE BORROWER (OR SUCH SUBSIDIARY) THAN IT WOULD HAVE OBTAINED IN A COMPARABLE
ARM'S-LENGTH TRANSACTION WITH A PERSON WHICH IS NOT AN AFFILIATE.
(D)
LIMITATION ON LIENS.
CREATE, INCUR, ASSUME OR SUFFER TO EXIST,
AND SHALL NOT PERMIT ANY SUBSIDIARY TO CREATE, INCUR, ASSUME OR SUFFER TO EXIST,
ANY LIEN UPON ANY OF ITS
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PROPERTIES, ASSETS OR REVENUES, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT
FOR PERMITTED LIENS.
(E)
AMENDMENTS OF ORGANIZATIONAL DOCUMENTS.
AMEND, MODIFY OR CHANGE,
OR PERMIT ANY SUBSIDIARY TO AMEND, MODIFY OR CHANGE, ITS ARTICLES OF
INCORPORATION OR BYLAWS IN ANY MANNER THAT COULD REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT.
(F)
LIMITATION ON GUARANTEE OBLIGATIONS.
CREATE, INCUR, ASSUME OR
SUFFER TO EXIST, AND SHALL NOT PERMIT ANY SUBSIDIARY TO CREATE, INCUR, ASSUME OR
SUFFER TO EXIST, ANY GUARANTEE OBLIGATION EXCEPT:
(I)
GUARANTEES OF OBLIGATIONS TO THIRD PARTIES MADE IN THE ORDINARY
COURSE OF BUSINESS NOT RELATING TO DEBT;
(II)
GUARANTEE OBLIGATIONS EXISTING ON THE DATE HEREOF;
(III)
GUARANTEE OBLIGATIONS WHICH BY THEIR TERMS (EITHER MANDATORILY OR
AT THE UNFETTERED OPTION OF THE BORROWER) ARE PAYABLE SOLELY IN CAPITAL STOCK
(OTHER THAN MANDATORY REDEEMABLE STOCK) OF THE BORROWER PROVIDED THAT THE
BORROWER AGREES THAT SO LONG AS THIS AGREEMENT IS IN EFFECT TO CAUSE ANY PAYMENT
UNDER ANY SUCH OUTSTANDING OBLIGATION TO BE MADE ONLY IN SUCH CAPITAL STOCK; AND
(IV)
GUARANTEE OBLIGATIONS PERMITTED PURSUANT TO SECTION 5.02(J)(IX).
(G)
LIMITATION ON SALE OF ASSETS.
CONVEY, SELL, LEASE, ASSIGN,
TRANSFER OR OTHERWISE DISPOSE OF ANY OF, ITS PROPERTY, BUSINESS OR ASSETS
(INCLUDING