(XII)
LIENS OF LANDLORDS OR OF MORTGAGEES OF LANDLORDS ON FIXTURES AND
MOVABLE PROPERTY LOCATED ON PREMISES LEASED IN THE ORDINARY COURSE OF BUSINESS;
(XIII)
LIENS ARISING FROM PRECAUTIONARY UNIFORM COMMERCIAL CODE
FINANCING STATEMENT FILINGS WITH RESPECT TO OPERATING LEASES ENTERED INTO BY ANY
COMPANY IN THE ORDINARY COURSE OF BUSINESS;
(XIV)
LICENSES, LEASES, OR SUBLEASES PERMITTED HEREUNDER GRANTED TO
OTHERS NOT INTERFERING IN ANY MATERIAL RESPECT WITH THE BUSINESS OF ANY COMPANY;
(XV)
LIENS IN FAVOR OF BANKING INSTITUTIONS ARISING BY OPERATION OF LAW
ENCUMBERING DEPOSITS (INCLUDING THE RIGHT OF SETOFF) HELD BY SUCH BANKING
INSTITUTION INCURRED IN THE ORDINARY COURSE OF BUSINESS AND WHICH ARE WITHIN THE
GENERAL PARAMETERS CUSTOMARY IN THE BANKING INDUSTRY; AND
(XVI)
LIENS NOT OTHERWISE PERMITTED BY THIS SECTION 10.3 PROVIDED THAT
THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF THE OBLIGATIONS SECURED THEREBY
DOES NOT EXCEED $25,000,000 IN THE AGGREGATE AT ANY TIME OUTSTANDING.
10.4
Transactions with Affiliates.
Borrower shall not, and shall not
permit any other Company to, enter into any transaction with any of its
Affiliates, other than transactions upon fair and reasonable terms not
materially less favorable than such Company could obtain or could become
entitled to in an arm's-length transaction with a Person that was not its
Affiliate; provided, however, that the Companies shall be entitled to make the
following payments and/or enter into the following transactions:
40
(A)
THE PAYMENT OF REASONABLE AND CUSTOMARY FEES AND REIMBURSEMENT OF EXPENSES
PAYABLE TO DIRECTORS OF ANY COMPANY;
(B)
THE EMPLOYMENT ARRANGEMENTS WITH RESPECT TO THE PROCUREMENT OF SERVICES OF
DIRECTORS, OFFICERS, AND EMPLOYEES IN THE ORDINARY COURSE OF BUSINESS AND THE
PAYMENT OF REASONABLE FEES IN CONNECTION THEREWITH;
(C)
THE TRANSACTIONS, AGREEMENTS, AND ARRANGEMENTS CONTEMPLATED BY THE
EXCHANGE AGREEMENT; AND
(D)
ANY OTHER TRANSACTION BETWEEN AFFILIATES OTHERWISE EXPRESSLY PERMITTED BY
THIS AGREEMENT.
10.5
COMPLIANCE WITH DOCUMENTS.
BORROWER SHALL NOT, AND SHALL NOT PERMIT
ANY OTHER COMPANY TO, (A) VIOLATE THE PROVISIONS OF ITS CONSTITUENT DOCUMENTS,
OR (B) MODIFY, REPEAL, REPLACE, OR AMEND ANY PROVISION OF ITS CONSTITUENT
DOCUMENTS, IN EACH CASE WHERE SUCH ACTION COULD BE A MATERIAL ADVERSE EVENT.
10.6
FISCAL YEAR AND ACCOUNTING METHODS .
BORROWER SHALL NOT, AND SHALL
NOT PERMIT ANY OTHER COMPANY TO, CHANGE ITS FISCAL YEAR FOR BOOK ACCOUNTING
PURPOSES; PROVIDED THAT POI AND BORROWER MAY CHANGE THEIR RESPECTIVE FISCAL YEAR
WITH THE PRIOR WRITTEN CONSENT OF ADMINISTRATIVE AGENT, SUCH CONSENT NOT TO BE
UNREASONABLY WITHHELD.
10.7
NEW BUSINESS.
BORROWER SHALL NOT, AND SHALL NOT PERMIT ANY OTHER
COMPANY (OTHER THAN SUBSIDIARIES OF POI THAT IN THE AGGREGATE CONTRIBUTE FIVE
PERCENT (5%) OR LESS OF THE CONSOLIDATED TOTAL ASSETS OF THE COMPANIES AS OF THE
LAST DAY OF THE IMMEDIATELY PRECEDING FISCAL YEAR OF THE COMPANIES) TO, DIRECTLY
OR INDIRECTLY, PERMIT OR SUFFER TO EXIST ANY MATERIAL CHANGE IN THE TYPE OF
BUSINESSES IN WHICH IT IS ENGAGED FROM THE BUSINESSES OF THE COMPANIES AS
CONDUCTED ON THE EXECUTION DATE OR REASONABLE EXTENSIONS THEREOF.
10.8
LOANS, ADVANCES, AND INVESTMENTS.
BORROWER SHALL NOT, AND SHALL NOT