APPLICABLE, AND THE
INCURRENCE OF SUCH INDEBTEDNESS WOULD NOT OTHERWISE CAUSE A DEFAULT OR EVENT OF
DEFAULT TO OCCUR;
(F)
UNSECURED INDEBTEDNESS ARISING UNDER OR PURSUANT TO ANY
AGREEMENTS ENTERED INTO BY A BORROWER OR GUARANTOR OR A SUBSIDIARY OF A BORROWER
OR GUARANTOR, FOR NON-SPECULATIVE PURPOSES, THAT PROVIDES FOR AN INTEREST RATE,
CREDIT, COMMODITY OR EQUITY SWAP, CAP, FLOOR, COLLAR, FORWARD FOREIGN EXCHANGE
TRANSACTION, CURRENCY SWAP, CROSS CURRENCY RATE SWAP, CURRENCY OPTION, OR ANY
COMBINATION OF, OR OPTION WITH RESPECT TO, THESE OR SIMILAR TRANSACTIONS, FOR
THE PURPOSE OF HEDGING SUCH PERSON'S EXPOSURE TO FLUCTUATIONS IN INTEREST OR
EXCHANGE RATES, LOAN, CREDIT EXCHANGE, SECURITY OR CURRENCY VALUATIONS OR
COMMODITY PRICES;
94
(G)
INDEBTEDNESS ARISING IN CONNECTION WITH ANY REASONABLE DEFERRED
COMPENSATION PLAN TO OFFICERS, EMPLOYEES AND DIRECTORS FOR SERVICES RENDERED TO
BORROWERS AND GUARANTORS IN THE ORDINARY COURSE OF BUSINESS;
(H)
THE INDEBTEDNESS SET FORTH ON SCHEDULE 9.9(H) HERETO OR OTHER
INDEBTEDNESS OF ANY BORROWER TO ANOTHER BORROWER OR GUARANTOR OR OF ANY
GUARANTOR TO A BORROWER OR ANOTHER GUARANTOR, IN EACH CASE, SO LONG AS (I) SUCH
GUARANTORS ARE PARTIES TO THE INTERCOMPANY SUBORDINATION AGREEMENT, (II) SUCH
INDEBTEDNESS IS UNSECURED AND (III) PAYMENTS MADE BY A BORROWER WITH RESPECT TO
SUCH INDEBTEDNESS ARE MADE ON A NON-CASH BASIS BY WAY OF A BALANCE SHEET
ADJUSTMENT; AND
(I)
INDEBTEDNESS OF BORROWERS AND GUARANTORS TO NEW TERM LOAN AGENT
AND NEW TERM LOAN LENDERS EVIDENCED BY OR ARISING UNDER THE NEW TERM LOAN
AGREEMENT (AS PERMITTED TO BE AMENDED UNDER THE TERMS OF THE NEW TERM LOAN
INTERCREDITOR AGREEMENT); PROVIDED, THAT, EACH OF THE FOLLOWING CONDITIONS IS
SATISFIED AS DETERMINED BY AGENT:
(I)
AGENT SHALL HAVE RECEIVED NOT LESS THAN THIRTY (30) DAYS' PRIOR
WRITTEN NOTICE OF THE INTENTION OF BORROWERS AND GUARANTORS TO INCUR THE SUCH
INDEBTEDNESS, INCLUDING A DESCRIPTION OF THE TERMS OF SUCH INDEBTEDNESS;
(II)
THE AGGREGATE PRINCIPAL AMOUNT OF SUCH INDEBTEDNESS SHALL NOT
EXCEED $100,000,000, LESS THE AGGREGATE AMOUNT OF ALL REPAYMENTS, REPURCHASES OR
REDEMPTIONS, WHETHER OPTIONAL OR MANDATORY, IN RESPECT THEREOF, PLUS ANY
INTEREST IN ACCORDANCE WITH THE TERMS OF THE NEW TERM LOAN AGREEMENT (AS MAY BE
AMENDED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE NEW TERM LOAN
INTERCREDITOR AGREEMENT);
(III)
THE EXISTING TERM LOAN AND ALL OBLIGATIONS RELATING THERETO SHALL
HAVE BEEN INDEFEASIBLY PAID IN FULL IN IMMEDIATELY AVAILABLE FUNDS;
(IV)
AGENT SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO AGENT, THE NEW TERM LOAN INTERCREDITOR AGREEMENT, DULY
AUTHORIZED, EXECUTED AND DELIVERED BY NEW TERM LOAN AGENT AND ACKNOWLEDGED BY
BORROWERS AND GUARANTORS;
(V)
THE SECURITY INTERESTS AND LIENS AND OTHER TERMS THEREOF SHALL BE
SUBJECT TO THE TERMS OF THE NEW TERM LOAN INTERCREDITOR AGREEMENT TO THE EXTENT
PROVIDED FOR THEREIN;
(VI)
AGENT SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO
AGENT, TRUE, CORRECT AND COMPLETE COPIES OF ALL OF THE NEW TERM LOAN DOCUMENTS
OR OTHER AGREEMENTS, DOCUMENTS, AND INSTRUMENTS EVIDENCING OR OTHERWISE RELATED
TO SUCH INDEBTEDNESS, EACH AS EXECUTED AND DELIVERED BY THE PARTIES