OR RELATED TO THE LOAN DOCUMENTS;
(VII) CONTINGENT OBLIGATIONS IN RESPECT OF REPRESENTATIONS AND WARRANTIES
CUSTOMARILY GIVEN IN RESPECT OF ASSET SALES OTHERWISE PERMITTED HEREUNDER; AND
(VIII) CONTINGENT OBLIGATIONS, IN AN AGGREGATE AMOUNT NOT TO EXCEED $3,000,000,
ARISING AS A RESULT OF THE GUARANTY OF ANY INDEBTEDNESS NOT DESCRIBED IN CLAUSES
(I) THROUGH (IX) HEREOF AND OTHERWISE PERMITTED UNDER SECTION 7.3(A).
63
(F)
RESTRICTED PAYMENTS.
THE BORROWER SHALL NOT
DECLARE OR MAKE ANY RESTRICTED PAYMENT IF EITHER A DEFAULT OR AN UNMATURED
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AT THE DATE OF DECLARATION OR
PAYMENT THEREOF OR WOULD RESULT THEREFROM PROVIDED BORROWER SHALL NOT MAKE,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE LENDER, ANY RESTRICTED PAYMENT WITH THE
PROCEEDS OF ANY REVOLVING LOAN TO ANY SUBORDINATED DEBT OF BORROWER AS DEFINED
UNDER SUBSECTION (III) OF THE DEFINITION OF "RESTRICTED PAYMENT" IN SECTION 1.1
OF THE AGREEMENT (OTHER THAN FOR ACCRUED INTEREST).
(G)
CONDUCT OF BUSINESS; SUBSIDIARIES;
ACQUISITIONS.
NEITHER THE BORROWER NOR ANY OF ITS SUBSIDIARIES SHALL ENGAGE IN
ANY BUSINESS OTHER THAN THE BUSINESSES ENGAGED IN BY THE BORROWER ON THE DATE
HEREOF AND ANY BUSINESS OR ACTIVITIES WHICH ARE REASONABLY SIMILAR, RELATED OR
INCIDENTAL THERETO OR LOGICAL EXTENSIONS THEREOF.
THE BORROWER SHALL NOT
CREATE, ACQUIRE OR CAPITALIZE ANY SUBSIDIARY AFTER THE DATE HEREOF UNLESS (I) NO
DEFAULT OR UNMATURED DEFAULT WHICH IS NOT BEING CURED SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD RESULT THEREFROM; (II) AFTER SUCH CREATION, ACQUISITION OR
CAPITALIZATION, ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN SHALL
BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS (UNLESS SUCH REPRESENTATION AND
WARRANTY IS MADE AS OF A SPECIFIC DATE, IN WHICH CASE, SUCH REPRESENTATION OR
WARRANTY SHALL BE TRUE IN ALL MATERIAL RESPECTS AS OF SUCH DATE); AND
(III) AFTER SUCH CREATION, ACQUISITION OR CAPITALIZATION THE BORROWER SHALL BE
IN COMPLIANCE WITH THE TERMS OF SECTION 7.2(K) AND SECTION 7.3(L).
THE BORROWER
SHALL NOT MAKE ANY ACQUISITIONS WITHOUT APPROVAL BY THE LENDER PRIOR TO THE
COLLATERAL RELEASE DATE PROVIDED THEREAFTER, THAT BORROWER SHALL NOT NEED THE
APPROVAL OF THE LENDER TO MAKE PERMITTED ACQUISITIONS (AS DEFINED BELOW) OF UP
TO (X) $5,000,000 IN AGGREGATE PURCHASE PRICE IN THE FIRST TWELVE MONTH PERIOD
IMMEDIATELY FOLLOWING THE COLLATERAL RELEASE DATE, (II) $10,000,000 IN AGGREGATE
PURCHASE PRICE THEREAFTER.
FOR PURPOSES OF THIS AGREEMENT, PERMITTED
ACQUISITIONS ARE ACQUISITIONS MEETING THE FOLLOWING REQUIREMENTS OR OTHERWISE
APPROVED BY THE LENDERS:
(I)
NO DEFAULT OR UNMATURED DEFAULT SHALL
HAVE OCCURRED AND BE CONTINUING OR WOULD RESULT FROM SUCH ACQUISITION OR THE
INCURRENCE OF ANY INDEBTEDNESS IN CONNECTION THEREWITH;
(II)
THE PURCHASE IS CONSUMMATED PURSUANT TO A
NEGOTIATED ACQUISITION AGREEMENT ON A NON-HOSTILE BASIS;
(III)
THE BORROWER SHALL DELIVER TO THE LENDER A
CERTIFICATE FROM ONE OF THE AUTHORIZED OFFICERS, DEMONSTRATING TO THE REASONABLE
SATISFACTION OF THE LENDER THAT AFTER GIVING EFFECT TO SUCH ACQUISITION AND THE
INCURRENCE OF ANY INDEBTEDNESS PERMITTED BY SECTION 7.3(A) IN CONNECTION
THEREWITH, ON A PRO FORMA BASIS USING, FOR ANY ACQUISITION, HISTORICAL FINANCIAL
STATEMENTS, AS IF THE