(C)
INVESTMENTS OF EITHER BORROWER CONSISTING OF THE FORMATION OF A
WHOLLY-OWNED SUBSIDIARY IN CONJUNCTION WITH A FINANCING TRANSACTION IN WHICH
100% OF THE CAPITAL STOCK OR OTHER EQUITY INTERESTS IN SUCH SUBSIDIARY ARE
PLEDGED BY SUCH BORROWER TO THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE
LENDERS AND IF REQUESTED SUCH SUBSIDIARY SHALL BECOME A BORROWER OR GUARANTOR
HEREUNDER;
provided, however, that the foregoing Investments shall not be permitted if and
to the extent that they are otherwise prohibited pursuant to any other provision
of this Agreement or any other Loan Document.
Section 6.3
Indebtedness. Create, incur, assume, increase, become
liable on or suffer to exist any Indebtedness, except:
(A)
INDEBTEDNESS ARISING UNDER THE LOAN DOCUMENTS;
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(B)
INDEBTEDNESS EXISTING ON THE DATE OF THIS AGREEMENT;
(C)
INDEBTEDNESS ARISING IN THE ORDINARY COURSE OF EITHER BORROWER'S
BUSINESS;
(D)
PURCHASE MONEY OBLIGATIONS ARISING FROM THE ACQUISITION OF
PERSONAL PROPERTY USED IN THE ORDINARY COURSE OF EITHER BORROWER'S BUSINESS; AND
(E)
ADDITIONAL INDEBTEDNESS NOT TO EXCEED $2,000,000 CREATED PURSUANT
TO SECTION 2.2, ABOVE.
Section 6.4
Fundamental Changes; Subsidiaries.
(A)
CHANGE ITS NAME, FEDERAL TAXPAYER IDENTIFICATION NUMBER OR STATE
OF FORMATION, NOR ASSUME A DIFFERENT NAME, NOR CONDUCT ITS BUSINESS OR AFFAIRS
UNDER ANY OTHER NAME WITHOUT PRIOR CONSENT OF THE ADMINISTRATIVE AGENT.
(B)
MERGE, DISSOLVE, LIQUIDATE, CONSOLIDATE WITH OR INTO ANOTHER
PERSON, CHANGE ITS STRUCTURE (WHETHER BY EQUITY SALE, ISSUANCE, PURCHASE OR
OTHERWISE), OR SELL, TRANSFER OR OTHERWISE DISPOSE OF (WHETHER IN ONE
TRANSACTION OR IN A SERIES OF TRANSACTIONS) ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS (WHETHER NOW OWNED OR HEREAFTER ACQUIRED) TO OR IN FAVOR OF ANY PERSON.
Section 6.5
Dispositions.
Make any disposition of any collateral or
any other property or assets of either Borrower or enter into any agreement to
make any disposition of any of the same, except:
(A)
DISPOSITIONS OF OBSOLETE OR WORN OUT PROPERTY, WHETHER NOW OWNED
OR HEREAFTER ACQUIRED, IN THE ORDINARY COURSE OF BUSINESS;
(B)
DISPOSITIONS OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS;
(C)
DISPOSITIONS OF EQUIPMENT OR REAL PROPERTY TO THE EXTENT THAT
(I) SUCH PROPERTY IS EXCHANGED FOR CREDIT AGAINST THE PURCHASE PRICE OF SIMILAR
REPLACEMENT PROPERTY OR (II) THE PROCEEDS OF SUCH DISPOSITION ARE REASONABLY
PROMPTLY APPLIED TO THE PURCHASE PRICE OF SUCH REPLACEMENT PROPERTY;
(D)
DISPOSITIONS RELATED TO BORROWERS' ROGERS, ARKANSAS STORE,
OPERATIONS OF WHICH HAVE BEEN TERMINATED OR BORROWER'S LEASEHOLD OR OTHER
INTEREST IN A PROJECT IN TROY, MI, WHICH BORROWER HAS DETERMINED NOT TO PURSUE
AND WILL DISPOSE OF WHEN SUCH PROJECT CAN BE SOLD; AND
(E)
DISPOSITIONS WHICH MAY BE REQUIRED UNDER THE TERMS OF LOAN
DOCUMENTS FOR ADDITIONAL LOANS WHICH MAY BE MADE TO BORROWER AS CONTEMPLATED BY
SECTION 2.2.
provided, however, that Borrowers shall undertake commercially reasonable steps
to cause any of the foregoing dispositions to be for fair market value.
Section 6.6
Restricted Payments.
Directly or indirectly, declare or
pay (a) any dividend or other distribution (whether in cash, securities or other
property) with respect to either Borrower's capital stock