WITHIN ONE
HUNDRED TWENTY (120) DAYS OF THE CLOSING DATE (A) ON SUBSTANTIALLY THE TERMS SET
FORTH IN THE LETTER OF INTENT PREVIOUSLY PROVIDED TO THE ADMINISTRATIVE AGENT
REGARDING THE ROCKY MOUNTAIN TRANSACTION OR (B) ON TERMS CONSENTED TO BY THE
REQUIRED LENDERS IN THE EVENT THE FINAL TERMS OF THE ROCKY MOUNTAIN TRANSACTION
ARE MATERIALLY DIFFERENT FROM THE TERMS IN THE LETTER OF INTENT.
THE PROCEEDS
OF THE ROCKY MOUNTAIN TRANSACTION (NET OF THE REASONABLE COSTS AND EXPENSES
INCURRED BY THE COMPANY OR ROCKY MOUNTAIN IN CONNECTION WITH SUCH TRANSACTION)
SHALL BE USED TO PREPAY THE TERM LOAN ON THE TERMS SET FORTH IN SECTION 6.2.2
AND 6.3.1.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ON OR
PRIOR TO DECEMBER 31, 2009, EITHER THE ROCKY MOUNTAIN TRANSACTION SHALL HAVE
BEEN CONSUMMATED AS PROVIDED ABOVE OR THE COMPANY SHALL HAVE PROVIDED TO THE
LENDERS A DETAILED PLAN OF LIQUIDATION REGARDING ROCKY MOUNTAIN, WHICH PLAN
SHALL BE REASONABLY ACCEPTABLE TO THE REQUIRED LENDERS.
SECTION 11
NEGATIVE COVENANTS
Until the expiration or termination of the Commitments and thereafter until all
Obligations hereunder and under the other Loan Documents are paid in full (other
than any Obligation arising solely from any Bank Product Agreement or contingent
indemnification Obligations to the extent no claim giving rise thereto has been
asserted) and all Letters of Credit have been terminated or Cash Collateralized,
the Company agrees that, unless at any time the Required Lenders shall otherwise
expressly consent in writing, it will:
11.1
DEBT.
NOT, AND NOT PERMIT ANY OTHER LOAN PARTY TO, INCUR, PERMIT
TO REMAIN OUTSTANDING, ASSUME OR IN ANY WAY BECOME COMMITTED FOR DEBT, EXCEPT
(I) DEBT INCURRED HEREUNDER OR TO ANY LENDER OR THE ADMINISTRATIVE AGENT,
(II) DEBT EXISTING ON THE DATE OF THIS AGREEMENT AND SHOWN IN THE DRAFT 2008
FINANCIAL STATEMENTS (OTHER THAN THE DEBT TO BE REPAID) DELIVERED TO THE
ADMINISTRATIVE AGENT PRIOR TO THE DATE HEREOF, (III) DEBT EXISTING ON THE DATE
HEREOF AS LISTED IN SCHEDULE 11.1 HERETO, (IV) DEBT WITH RESPECT TO WHICH THE
REQUIRED LENDERS HAVE GIVEN THE COMPANY PRIOR WRITTEN CONSENT; AND (V) DEBT IN
THE AGGREGATE AMOUNT NOT GREATER THAN $500,000 AT ANY TIME.
11.2
LIENS.
NOT, AND NOT PERMIT ANY OTHER LOAN PARTY TO, CREATE, SUFFER
OR PERMIT TO EXIST ANY LIEN OF ANY KIND OR NATURE UPON ANY OF THEIR ASSETS NOW
OR HEREAFTER OWNED OR ACQUIRED, OR ACQUIRE OR AGREE TO ACQUIRE ANY PROPERTY OR
ASSETS OF ANY CHARACTER UNDER ANY CONDITIONAL SALE AGREEMENT OR OTHER TITLE
RETENTION AGREEMENT; NOTWITHSTANDING THE FOREGOING, PERMITTED LIENS ARE
PERMITTED HEREUNDER.
11.3
INTENTIONALLY OMITTED.
11.4
RESTRICTED PAYMENTS.
NOT, AND NOT PERMIT ANY OTHER LOAN PARTY TO,
(A) MAKE ANY DISTRIBUTION TO ANY HOLDERS OF ITS CAPITAL SECURITIES, (B) PURCHASE
OR REDEEM ANY OF ITS CAPITAL SECURITIES, (C) PAY ANY MANAGEMENT FEES OR SIMILAR
FEES TO ANY OF ITS EQUITYHOLDERS OR ANY AFFILIATE THEREOF, (D) MAKE ANY
REDEMPTION, PREPAYMENT, DEFEASANCE, REPURCHASE OR ANY OTHER
50
PAYMENT IN RESPECT OF ANY SUBORDINATED DEBT OR (E)