SUCH ACQUISITION (AND IN GRANTING OR DENYING SUCH CONSENT,
BANK MAY CONSIDER, AMONG OTHER THINGS, WHETHER (X) THE BUSINESS ACQUIRED IS A
PERMITTED LINE OF BUSINESS; (Y) IMMEDIATELY AFTER THE ACQUISITION, THE BUSINESS
SO ACQUIRED (AND THE ASSETS CONSTITUTING SUCH BUSINESS) SHALL BE OWNED AND
OPERATED BY BORROWER; (Z) IMMEDIATELY AFTER THE ACQUISITION, BORROWER SHALL HAVE
EXECUTED AND DELIVERED SUCH DOCUMENTATION (IF ANY) AS MAY BE REQUIRED BY BANK SO
THAT BANK SHALL HAVE A FIRST LIEN WITH RESPECT TO ANY ASSETS ACQUIRED IN
CONNECTION WITH SUCH ACQUISITION (OTHER THAN REAL PROPERTY); AND PROVIDED THAT
IN ANY EVENT BANK MAY WITHHOLD SUCH CONSENT IF ANY DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING AT THE TIME OF THE CONSUMMATION OF SUCH ACQUISITION OR WOULD
EXIST IMMEDIATELY AFTER SUCH ACQUISITION.
"PERMITTED INDEBTEDNESS" MEANS:
(A)
THE LOANS;
(B)
THE EXISTING INDEBTEDNESS;
(C)
INDEBTEDNESS OTHERWISE EXPRESSLY PERMITTED
UNDER THE TERMS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, IF ANY;
(D)
INDEBTEDNESS ARISING UNDER ANY WACHOVIA SWAP
DOCUMENT;
(E)
ANY INDEBTEDNESS ARISING UNDER ANY SWAP
DOCUMENT ENTERED INTO AS A RESULT OF THE COMPLIANCE WITH ANY AFFIRMATIVE
COVENANT OF ANY BORROWER PARTY SET FORTH IN ANY LOAN DOCUMENT;
(F)
INDEBTEDNESS INCURRED IN BORROWER'S ORDINARY
COURSE OF BUSINESS AND NOT INCURRED THROUGH THE BORROWING OF MONEY, PROVIDED
THAT SUCH INDEBTEDNESS IS EITHER UNSECURED INDEBTEDNESS OR INDEBTEDNESS SECURED
BY A PERMITTED LIEN; AND
(G)
INDEBTEDNESS (OTHER THAN INDEBTEDNESS
SPECIFIED IN CLAUSES (A) THROUGH (G) ABOVE) IN AN AGGREGATE AMOUNT THAT SHALL
NOT EXCEED $1,000,000.00 IN ANY CONSECUTIVE TWELVE-MONTH PERIOD.
"PERMITTED INVESTMENTS" MEANS:
(A)
LIQUID ASSETS;
(B)
PURCHASES AND ACQUISITIONS OF INVENTORY,
SUPPLIES, MATERIALS AND EQUIPMENT IN THE ORDINARY COURSE OF BUSINESS;
(C)
INVESTMENTS CONSISTING OF LOANS AND ADVANCES
TO EMPLOYEES FOR REASONABLE TRAVEL, RELOCATION AND BUSINESS EXPENSES IN THE
ORDINARY COURSE OF BUSINESS OR PREPAID EXPENSES INCURRED IN THE ORDINARY COURSE
OF BUSINESS;
(D)
WITHOUT DUPLICATION, INVESTMENTS CONSISTING OF
PERMITTED INDEBTEDNESS AND PERMITTED ACQUISITIONS;
20
(E)
EXISTING INVESTMENTS;
(F)
INVESTMENTS (OTHER THAN INVESTMENTS
SPECIFIED IN CLAUSES (A) THROUGH (E) ABOVE) IN AN AGGREGATE AMOUNT THAT SHALL
NOT EXCEED $1,000,000.00 IN ANY CONSECUTIVE TWELVE-MONTH PERIOD; AND
(G)
ANY OTHER INVESTMENTS THAT MAY BE APPROVED IN
WRITING BY BANK FROM TIME TO TIME (INCLUDING, WITHOUT LIMITATION, ANY APPROVAL
OF AN INVESTMENT POLICY ESTABLISHED BY BORROWER).
"PERMITTED LIENS" MEANS:
(A)
BANK'S LIEN;
(B)
THOSE LIENS IDENTIFIED ON THE ATTACHED
EXHIBIT "E";
(C)
THE FOLLOWING LIENS, IF THE GRANTING OF SUCH
LIEN OR THE ATTACHMENT OF SUCH LIEN TO THE COLLATERAL (I) DOES NOT OTHERWISE
CONSTITUTE A DEFAULT UNDER THE TERMS OF THIS AGREEMENT, AND (II) DOES NOT GIVE
RISE TO A MATERIAL ADVERSE CHANGE:
(1)
IF THE VALIDITY OR AMOUNT THEREOF IS BEING
CONTESTED IN GOOD FAITH BY APPROPRIATE AND LAWFUL PROCEEDINGS, SO LONG AS LEVY
AND EXECUTION THEREON HAVE BEEN STAYED AND CONTINUE TO BE STAYED, AND WITH
RESPECT TO WHICH ADEQUATE RESERVES OR OTHER APPROPRIATE PROVISIONS ARE BEING
MAINTAINED TO THE EXTENT REQUIRED BY GENERALLY ACCEPTED ACCOUNTING PRINCIPLES:
(a)
Liens for taxes, assessments or charges due