SUBSTANTIALLY ALL OF THE ASSETS OF ANY PERSON OR ENTITY, CHANGE ITS BUSINESS
FORM, OR COMMENCE OPERATIONS UNDER ANY OTHER NAME, ORGANIZATION, OR ENTITY,
INCLUDING ANY JOINT VENTURE; PROVIDED HOWEVER THAT BORROWER MAY (A) MAKE
ACQUISITIONS PURSUANT TO WHICH PAYMENT IS MADE SOLELY IN STOCK OR EQUITY
INTERESTS IN BORROWER; (B) COMPLETE THE ASSET PURCHASE CONTEMPLATED IN THE
GOODTIMES AGREEMENT; (C) IN ADDITION TO ACQUISITIONS PERMITTED UNDER CLAUSES
(A) AND (B) OF THIS SECTION, MAKE ACQUISITIONS UP TO, FOR ALL BORROWERS IN THE
AGGREGATE, $10,000,000.00 IN CONSIDERATION PAID IN ANY FISCAL YEAR; (D) FORM NEW
SUBSIDIARIES; AND (E) MERGE OR CONSOLIDATE ONE BORROWER INTO ANOTHER BORROWER,
PROVIDED THAT NO LATER THAN TEN (10) BUSINESS DAYS AFTER THE CREATION OF A NEW
SUBSIDIARY OR ANY MERGER OR CONSOLIDATION, AS DESCRIBED IN CLAUSES (D) OR (E),
BORROWER SHALL (I) PROVIDE LENDER WITH WRITTEN NOTIFICATION OF SUCH TRANSACTIONS
(INCLUDING A DETAILED DESCRIPTION, THE NAME OF ANY NEWLY FORMED PERSON, ANY
CHANGE IN THE NAME OF ANY EXISTING PERSON, THE BUSINESS FORM OF ANY NEWLY FORMED
PERSON OR CHANGE IN BUSINESS FORM OF ANY EXISTING PERSON, AND THE PLACE OF
LOCATION (AS THAT TERM IS USED IN THE APPLICABLE UNIFORM COMMERCIAL CODE) OF ANY
NEWLY FORMED PERSON OR ANY CHANGE OF LOCATION OF ANY EXISTING PERSON, AND
(II) TAKE SUCH ACTION (OR CAUSE SUCH NEWLY FORMED PERSON TO TAKE SUCH ACTION) AS
LENDER DIRECTS IN ORDER TO CREATE AND/OR PERFECT LENDER'S SECURITY INTEREST IN
ANY COLLATERAL.
10.6
INVESTMENTS.
BORROWER WILL NOT OWN, PURCHASE OR
ACQUIRE ANY STOCK, OBLIGATIONS OR SECURITIES OF, OR ANY OTHER INTEREST IN, OR
MAKE ANY CAPITAL CONTRIBUTION TO, ANY PERSON, EXCEPT THAT BORROWER MAY OWN,
PURCHASE OR ACQUIRE:
(A)
COMMERCIAL PAPER MATURING NOT IN EXCESS OF
ONE YEAR FROM THE DATE OF ACQUISITION AND RATED P1 BY MOODY'S INVESTORS
SERVICE, INC. OR A1 BY STANDARD & POOR'S CORPORATION ON THE DATE OF ACQUISITION;
36
(B)
CERTIFICATES OF DEPOSIT IN NORTH AMERICAN
COMMERCIAL BANKS RATED C OR BETTER BY KEEFE, BRUYETTE & WOODS, INC. OR 3 OR
BETTER BY CATES CONSULTING ANALYSTS, MATURING NOT IN EXCESS OF ONE YEAR FROM THE
DATE OF ACQUISITION;
(C)
OBLIGATIONS OF THE UNITED STATES GOVERNMENT
OR ANY AGENCY THEREOF, THE OBLIGATIONS OF WHICH ARE GUARANTEED BY THE UNITED
STATES GOVERNMENT, MATURING, IN EACH CASE, NOT IN EXCESS OF ONE YEAR FROM THE
DATE OF ACQUISITION; AND
(D)
REPURCHASE AGREEMENTS OF ANY BANK OR TRUST
COMPANY INCORPORATED UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE
THEREOF AND FULLY SECURED BY A PLEDGE OF OBLIGATIONS ISSUED OR FULLY AND
UNCONDITIONALLY GUARANTEED BY THE UNITED STATES GOVERNMENT; AND
(E)
THE INVESTMENTS DESCRIBED ON EXHIBIT 10.6
HERETO AND OWNED AS OF THE CLOSING DATE, INVESTMENTS PERMITTED BY SECTION 10.5
HEREOF, AND UP TO AN AGGREGATE OF $5,000,000.00 IN INVESTMENTS ACQUIRED BY
BORROWER SUBSEQUENT TO THE CLOSING DATE' PROVIDED THAT SUCH ADDITIONAL
$5,000,000.00 IN INVESTMENTS SHALL NOT INCLUDE INVESTMENTS WHICH WOULD OTHERWISE
BE PROHIBITED BY SECTION 10.5 HEREOF.
10.7
LOANS.
BORROWER SHALL NOT LEND OR