AS
AMENDED FROM TIME TO TIME WITH MAJORITY LENDERS' WRITTEN CONSENT AND FOR EQUITY
INTERESTS IN BORROWER ISSUED UPON EXERCISE THEREOF, (X) GRANT ANY OPTION,
WARRANT OR OTHER RIGHT TO PURCHASE ANY EQUITY INTEREST IN BORROWER, ANY
SUBSIDIARY OR ANY PORTFOLIO ENTITY-50% OR (Y) ISSUE ANY OTHER EQUITY INTERESTS
OTHER THAN (SUBJECT TO SECTION 7.15) UPON ITS FORMATION (OR IN THE CASE OF ABL,
THE 4% INTEREST IN COMMON STOCK OF ABL ISSUED TO AMRESCO SBA HOLDINGS LLC ON OR
ABOUT DECEMBER 15, 2006, AND 500,000 SHARES OR ADDITIONAL PREFERRED STOCK ISSUED
TO FCBLC FOR A CONTRIBUTION OF $5,000,000.00 ON FEBRUARY 27, 2007), OR (II)
TRANSFER ANY EQUITY INTERESTS (WHETHER ITS OWN OR EQUITY INTERESTS ISSUED BY ANY
PERSON OTHER THAN ITSELF) WITHOUT, IN EACH CASE, THE PRIOR WRITTEN CONSENT OF
MAJORITY LENDERS.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, BORROWER SHALL HAVE THE RIGHT TO OFFER AND SELL EQUITY
SECURITIES OF BORROWER UNDER THE FOLLOWING TERMS AND CONDITIONS: (W) BORROWER
SHALL DELIVER NOTICE TO AGENT, WITHIN TWENTY-FOUR (24) HOURS OF ANY FILING WITH
THE SEC; (X) BORROWER SHALL FULLY AND TIMELY COMPLY WITH ALL SECURITIES LAWS AND
WITH ALL TERMS AND PROVISIONS OF THE UNDERWRITING AGREEMENT PURSUANT TO WHICH
SUCH SECURITIES ARE OFFERED FOR SALE; AND (Y) THE PROSPECTUS AND ALL OTHER
SELLING MATERIALS USED BY BORROWER IN SUCH OFFERING SHALL NOT CONTAIN ANY
MISSTATEMENT OF MATERIAL FACT OR OMIT TO STATE ANY FACT WHICH WOULD RENDER THE
STATEMENTS CONTAINED THEREIN FALSE OR MISLEADING.
34
8.9
ADVERSE TRANSACTIONS.
NONE OF BORROWER, ANY
SUBSIDIARY OR ANY PORTFOLIO ENTITY-50% SHALL ENTER INTO ANY TRANSACTION WHICH
MATERIALLY AND ADVERSELY AFFECTS ITS ABILITY TO PERFORM ITS OBLIGATIONS UNDER
THE LOAN DOCUMENTS OR TO PAY ANY OTHER INDEBTEDNESS.
8.10
INVESTMENTS.
(A)
SUBJECT TO THE FURTHER LIMITATIONS SET
FORTH IN SECTIONS 8.10(B), (C) AND (D), AFTER THE EXECUTION DATE, NEITHER
BORROWER, ANY SUBSIDIARY OR ANY PORTFOLIO ENTITY-50% SHALL MAKE ANY INVESTMENT
IN EQUITY INTERESTS OF ANY PERSON, EXCEPT FOR (I) IN CONNECTION WITH THE
ACQUISITION BY A PORTFOLIO ENTITY OF AN ASSET POOL IN ACCORDANCE WITH THE OTHER
TERMS HEREOF ON THE FUNDING DATE OF THE ACQUISITION LOANS RELATING THERETO IN
ACCORDANCE WITH THE ASSET POOL ACQUISITION CERTIFICATE RELATING THERETO (OR OF
ANY OTHER ASSET POOL IN RESPECT OF WHICH NO LOANS HAVE BEEN REQUESTED IF SUCH
ACQUISITION IS IN THE ORDINARY COURSE OF BUSINESS FOR THE CONSOLIDATED GROUP AND
IS NOT OTHERWISE PROHIBITED HEREUNDER), (II) DIRECT OR INDIRECT CONTRIBUTIONS BY
PRIMARY OBLIGORS TO CAPITAL OF PORTFOLIO ENTITIES TO BE USED BY SUCH ENTITIES
(A) TO PAY DEVELOPMENT EXPENSES RELATED TO REAL ESTATE OR (B) TO PAY PORTFOLIO
PROTECTION EXPENSES, (III) INVESTMENTS BY ANY SUCH PERSON (OTHER THAN BY A
PORTFOLIO ENTITY) IN THE ORDINARY COURSE OF BUSINESS, AND (IV) INVESTMENTS, NOT
TO EXCEED $15,000,000.00, BY FCBLC IN EQUITY INTERESTS OF ABL.
(B)
AS USED IN SECTIONS 8.10(A),(C) AND (D)
"INVEST" SHALL INCLUDE, BUT NOT BE LIMITED TO CONTRIBUTIONS TO THE CAPITAL OF A
PERSON.
(C)
IN FURTHERANCE AND NOT IN LIMITATION OF