THAT:
(A) SUCH SECURITY INTEREST ATTACHES ONLY TO THE EQUIPMENT THEN BEING ACQUIRED BY
BORROWER, DID NOT AND DOES NOT ATTACH TO BORROWER'S CURRENT ASSETS AND DOES NOT
SECURE ANY OTHER INDEBTEDNESS; (B) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING AT THE TIME OF THE PROPOSED CREATION OF SUCH SECURITY INTEREST
OR WOULD RESULT THEREFROM; AND/OR (C) NO PORTION OF THE PURCHASE PRICE OF THE
RELEVANT EQUIPMENT HAS BEEN FUNDED BY THE TRADE-IN OR AVAILABLE PROCEEDS ARISING
FROM THE SALE OR OTHER DISPOSITION OF ANY OF BORROWER'S THEN, OR PREVIOUSLY,
OWNED EQUIPMENT.
23
(D)
EFFECT ANY RECAPITALIZATION; OR BE A PARTY TO ANY MERGER OR
CONSOLIDATION; OR SELL, TRANSFER, CONVEYOR LEASE ALL, OR ANY SUBSTANTIAL PART,
OF ITS PROPERTY WHERE "SUBSTANTIAL" MEANS ANY OF THE LAND (INCLUDING, WITHOUT
LIMITATION, LEASEHOLD IMPROVEMENTS THEREON) OR ANY PORTION OF BORROWER'S
PERSONAL PROPERTY HAVING AN AGGREGATE BOOK VALUE (AS MEASURED BY BORROWER' S
THEN MOST RECENT AUDITED FINANCIAL STATEMENTS DELIVERED TO LENDER) OF AT LEAST
$100,00.00 FOR ANY SINGLE PERSONAL PROPERTY TRANSACTION (OR RELATED SERIES OF
TRANSACTIONS) OR AGGREGATE BOOK VALUE OF AT LEAST $500,000.00 FOR ALL PERSONAL
PROPERTY TRANSACTIONS IN ANY FISCAL YEAR; OR SELL OR ASSIGN (EXCEPT TO LENDER),
WITH OR WITHOUT RECOURSE, ANY RECEIVABLES OR GENERAL INTANGIBLES.
(E)
ENTER INTO A NEW BUSINESS OR PURCHASE OR OTHERWISE ACQUIRE ANY
BUSINESS ENTERPRISE OR ANY SUBSTANTIAL ASSETS OF ANY PERSON OR ENTITY; OR MAKE
ANY LOANS TO ANY PERSON OR ENTITY EXCEPT FOR LOANS AND ADVANCES TO OFFICERS FOR
EXPENSES TO BE INCURRED IN THE ORDINARY COURSE OF BUSINESS SO LONG AS THE
AGGREGATE OUTSTANDING PRINCIPAL AMOUNT THEREOF DOES NOT EXCEED $10,000.00 AT ANY
TIME; OR PURCHASE ANY SHARES OF STOCK OF, OR SIMILAR INVESTMENT IN, ANY ENTITY.
(F)
BECOME A GUARANTOR OR SURETY OR PLEDGE ITS CREDIT OR ITS ASSETS
ON ANY UNDERTAKING OF ANOTHER.
(G)
MAKE ANY SUBSTANTIAL CHANGE IN PRESENT MANAGEMENT OR POLICY OR IN
ITS PRESENT BUSINESS OR ENTER INTO A NEW BUSINESS.
(H)
ENTER INTO ANY AGREEMENT PROVIDING FOR THE LEASING BY BORROWER OF
PROPERTY WHICH HAS BEEN OR IS TO BE SOLD OR TRANSFERRED BY BORROWER TO THE
LESSOR THEREOF, OR WHICH IS SUBSTANTIALLY SIMILAR IN PURPOSE TO THE PROPERTY SO
SOLD OR TRANSFERRED.
(I)
CHANGE ITS FISCAL YEAR.
(J)
(I) PERMIT OR SUFFER ANY PLAN MAINTAINED FOR EMPLOYEES OF
BORROWER OR ANY COMMONLY CONTROLLED ENTITY TO ENGAGE IN ANY TRANSACTION WHICH
RESULTS IN A LIABILITY OF BORROWER UNDER SECTION 409 OR 502(I) OF ERISA OR
SECTION 4975 OF THE CODE; (II) PERMIT OR SUFFER ANY SUCH PLAN TO INCUR ANY
"ACCUMULATED FUNDING DEFICIENCY" (WITHIN THE MEANING OF SECTION 302 OF ERISA AND
SECTION 412 OF THE CODE), WHETHER OR NOT WAIVED; (III) TERMINATE, OR SUFFER TO
BE TERMINATED, ANY PLAN COVERED BY TITLE IV OF ERISA MAINTAINED BY BORROWER OR
ANY COMMONLY CONTROLLED ENTITY OR PERMIT OR SUFFER TO EXIST A CONDITION UNDER
WHICH PBGC MAY TERMINATE ANY SUCH PLAN; OR (IV) PERMIT TO EXIST THE OCCURRENCE
OF ANY REPORTABLE EVENT