SO LONG AS THERE EXISTS NO EVENT OF DEFAULT
BOTH IMMEDIATELY BEFORE AND IMMEDIATELY AFTER GIVING EFFECT TO ANY SUCH
TRANSACTION, CONTINGENT OBLIGATIONS EXISTING OR ARISING UNDER ANY SWAP CONTRACT;
(D)
CONTINGENT OBLIGATIONS OUTSTANDING ON THE
DATE OF THIS AGREEMENT AND SET FORTH ON SCHEDULE 8.3;
(E)
CONTINGENT OBLIGATIONS INCURRED IN THE
ORDINARY COURSE OF BUSINESS WITH RESPECT TO SURETY AND APPEAL BONDS, PERFORMANCE
BONDS AND OTHER SIMILAR OBLIGATIONS NOT TO EXCEED $750,000 IN THE AGGREGATE AT
ANY TIME OUTSTANDING;
(F)
CONTINGENT OBLIGATIONS ARISING UNDER
INDEMNITY AGREEMENTS WITH TITLE INSURERS TO CAUSE SUCH TITLE INSURERS TO ISSUE
TO AGENT MORTGAGEE TITLE INSURANCE POLICIES;
39
(G)
CONTINGENT OBLIGATIONS ARISING WITH RESPECT
TO CUSTOMARY INDEMNIFICATION OBLIGATIONS IN FAVOR OF PURCHASERS IN CONNECTION
WITH DISPOSITIONS PERMITTED UNDER SECTION 8.7 OR IN FAVOR OF SELLERS IN
CONNECTION WITH INVESTMENTS AND ACQUISITIONS PERMITTED UNDER SECTION 8.8;
(H)
CONTINGENT OBLIGATIONS ARISING WITH RESPECT
TO FLOOR PLAN OBLIGATIONS, PROVIDED THAT THE MAXIMUM AMOUNT OF SUCH CONTINGENT
OBLIGATIONS SHALL NOT EXCEED AN AGGREGATE OF $7,500,000 AT ANY ONE TIME AND
PROVIDED THAT THE SPECIFIED COMPANIES ACCOUNTS FOR ALL SUCH FLOOR PLAN
OBLIGATIONS AND THE RELATED REVENUES IN A MANNER CONSISTENT WITH PAST PRACTICES
AS IN EXISTENCE ON THE CLOSING DATE; AND
(I)
CONTINGENT OBLIGATIONS IN RESPECT TO THE
GUARANTEE OF ANY OBLIGATIONS OTHERWISE PERMITTED OR NOT PROHIBITED HEREUNDER
(PROVIDED, THAT IF ANY SUCH OBLIGATIONS ARE SUBORDINATED TO THE NOTE PARTY
OBLIGATIONS, ANY SUCH GUARANTEE SHALL BE NO LESS SUBORDINATED TO THE NOTE PARTY
OBLIGATIONS).
8.4
RESTRICTED DISTRIBUTIONS.
NO SPECIFIED
COMPANY WILL, OR WILL PERMIT ANY SUBSIDIARY TO, DIRECTLY OR INDIRECTLY, DECLARE,
ORDER, PAY, MAKE OR SET APART ANY SUM FOR ANY RESTRICTED DISTRIBUTION; PROVIDED
THAT THE FOREGOING SHALL NOT RESTRICT OR PROHIBIT (A) ANY SUBSIDIARY FROM MAKING
DIVIDENDS OR DISTRIBUTIONS, DIRECTLY OR INDIRECTLY, TO ANY SPECIFIED COMPANY OR
(B) PURCHASES OF SHARES OF (OR OPTIONS TO PURCHASE SHARES OF) EQUITY INTERESTS
IN COMPANY OR OPTIONS THEREFOR FROM EMPLOYEES OF ANY NOTE PARTY UPON THEIR
DEATH, TERMINATION OF THEIR EMPLOYMENT OR RETIREMENT, SO LONG AS (I) BEFORE AND
AFTER GIVING EFFECT TO ANY SUCH DIVIDEND OR DISTRIBUTION FOR SUCH PURPOSE,
(W) NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, (X) SPECIFIED
COMPANIES ARE IN COMPLIANCE ON A PRO FORMA BASIS WITH THE COVENANTS SET FORTH IN
ARTICLE IX RECOMPUTED FOR THE MOST RECENTLY ENDED QUARTER FOR WHICH INFORMATION
IS AVAILABLE AND IS IN COMPLIANCE WITH ALL OTHER TERMS AND CONDITIONS OF THIS
AGREEMENT AND (Y) IF SUCH DIVIDEND OR DISTRIBUTION IS MADE PRIOR TO THE
EXPIRATION OF THE REVOLVING COMMITMENTS UNDER THE SENIOR CREDIT AGREEMENT, AT
LEAST $4,000,000 IN AVAILABILITY WILL REMAIN UNDER THE REVOLVING CREDIT FACILITY
PROVIDED UNDER THE SENIOR CREDIT AGREEMENT, AND (II) SUCH PURCHASES OR PAYMENTS
AFTER THE DATE HEREOF DO NOT EXCEED $500,000 IN ANY FISCAL YEAR AND DO NOT
EXCEED $1,500,000 IN THE AGGREGATE FROM AND AFTER THE CLOSING DATE.
NOTWITHSTANDING THE LIMITATIONS SET FORTH IN CLAUSE (B) OF THE IMMEDIATELY
PRECEDING SENTENCE, COMPANY MAY PURCHASE SHARES OF (OR OPTIONS TO