AFFILIATES UNLESS SUCH
ARRANGEMENT OR CONTRACT IS FAIR AND EQUITABLE TO BORROWER OR SUCH SUBSIDIARY AND
IS AN ARRANGEMENT OR CONTRACT OF THE KIND WHICH WOULD BE ENTERED INTO BY A
PRUDENT PERSON IN THE POSITION OF BORROWER OR SUCH SUBSIDIARY WITH A PERSON THAT
IS NOT ONE OF ITS AFFILIATES; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION
6.2(D) SHALL PROHIBIT (I) ANY TRANSACTIONS OTHERWISE PERMITTED HEREBY PURSUANT
TO ANY TAX SHARING AGREEMENT, (II) ANY TRANSACTION AMONG THE BORROWER AND ANY
SUBSIDIARY GUARANTOR, (III) THE TRANSACTION DESCRIBED ON SCHEDULE 6.2(D) OR (IV)
THE NASDI RESTRUCTURING.
(E)
NEGATIVE PLEDGES, ETC.
THE BORROWER SHALL NOT AND SHALL NOT
PERMIT ANY OF ITS SUBSIDIARIES TO, ENTER INTO (OR SUFFER TO EXIST) ANY AGREEMENT
PROHIBITING (I) THE CREATION OR ASSUMPTION OF ANY LIEN UPON THE BORROWER OR SUCH
SUBSIDIARY'S PROPERTIES, REVENUES OR ASSETS, WHETHER NOW OWNED OR HEREAFTER
ACQUIRED; (II) THE ABILITY OF THE BORROWER OR ANY SUCH SUBSIDIARY TO AMEND OR
OTHERWISE MODIFY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT; OR (III) THE ABILITY
OF ANY OF THE BORROWER'S SUBSIDIARIES TO MAKE ANY PAYMENTS, DIRECTLY OR
INDIRECTLY, TO THE BORROWER BY WAY OF DIVIDENDS, ADVANCES, REPAYMENTS OF LOANS
OR ADVANCES, REIMBURSEMENTS OF MANAGEMENT AND OTHER INTERCOMPANY CHARGES,
EXPENSES AND ACCRUALS OR OTHER RETURNS ON INVESTMENTS, OR ANY OTHER AGREEMENT OR
ARRANGEMENT WHICH RESTRICTS THE ABILITY OF ANY SUCH SUBSIDIARY TO MAKE ANY
PAYMENT, DIRECTLY OR INDIRECTLY, TO THE BORROWER OTHER THAN (A) THIS AGREEMENT
AND EACH LOAN DOCUMENT; (B) AGREEMENTS EXISTING AS OF THE CLOSING DATE AND
IDENTIFIED IN SCHEDULE 6.2(E); (C) AGREEMENTS GOVERNING DEBT PERMITTED BY CLAUSE
(II) OF SECTION 6.2(I) AS IN EFFECT ON THE CLOSING DATE, WHICH AGREEMENTS SHALL
BE IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT; (D)
AGREEMENTS GOVERNING DEBT PERMITTED BY CLAUSE (V) OF SECTION 6.2(I), WITH ANY
SUCH RESTRICTIONS BEING APPLICABLE SOLELY TO THE ASSETS FINANCED WITH THE
PROCEEDS OF SUCH DEBT; (E) THE BONDING AGREEMENT, THE WELLS FARGO DOCUMENTS, THE
INTERCREDITOR AGREEMENT AND THE NOTE INDENTURE; (F) SUCH RESTRICTIONS OR
CIRCUMSTANCES EXISTING UNDER OR BY REASON OF APPLICABLE LAWS; AND (G) SUCH
RESTRICTIONS OR ENCUMBRANCES EXISTING UNDER OR BY REASON OF CUSTOMARY
NON-ASSIGNMENT PROVISIONS IN OPERATING LEASES, BAREBOAT CHARTER AGREEMENTS, AND
LICENSES OF REAL OR PERSONAL PROPERTY (INCLUDING INTELLECTUAL PROPERTY) ENTERED
INTO BY ANY LOAN PARTY OR LESSEE OR LICENSEE IN THE ORDINARY COURSE OF BUSINESS
(PROVIDED THAT SUCH RESTRICTIONS AND ENCUMBRANCES PERTAIN ONLY TO THE PROPERTY
THAT IS THE SUBJECT MATTER OF THE APPLICABLE LEASE OR LICENSES).
54
(F)
GUARANTIES.
THE BORROWER SHALL NOT AND SHALL NOT PERMIT ANY OF
ITS SUBSIDIARIES TO, CREATE OR BECOME OR BE LIABLE, WHETHER DIRECTLY OR
INDIRECTLY, WITH RESPECT TO ANY GUARANTY, EXCEPT THAT THE BORROWER OR ANY SUCH
SUBSIDIARY MAY INCUR (I) GUARANTIES FOR THE BENEFIT OF THE BORROWER OR ANY SUCH
SUBSIDIARY IF THE PRIMARY OBLIGATION IS PERMITTED BY THIS AGREEMENT, (II) AN
UNSECURED GUARANTY BY THE BORROWER OF DEBT OWING BY AMBOY AGGREGATES SO LONG AS
THE MAXIMUM AMOUNT OF SUCH GUARANTY