DISCUSS THE AFFAIRS, FINANCES AND ACCOUNTS OF SUCH BORROWER
AND ANY OF ITS SUBSIDIARIES WITH ANY OF THEIR OFFICERS OR DIRECTORS AND WITH
THEIR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS; PROVIDED THAT SUCH BORROWER MAY,
IF IT SO CHOOSES, BE PRESENT AT OR PARTICIPATE IN ANY SUCH DISCUSSION.
(G)
KEEPING OF BOOKS.
KEEP, AND CAUSE EACH OF ITS SUBSIDIARIES TO
KEEP, PROPER BOOKS OF RECORD AND ACCOUNT, IN WHICH FULL AND CORRECT ENTRIES
SHALL BE MADE OF ALL FINANCIAL TRANSACTIONS AND THE ASSETS AND BUSINESS OF SUCH
BORROWER AND EACH SUCH SUBSIDIARY IN ACCORDANCE WITH GAAP.
(H)
MAINTENANCE OF PROPERTIES, ETC.
MAINTAIN AND PRESERVE, AND CAUSE
EACH OF ITS SUBSIDIARIES TO MAINTAIN AND PRESERVE, ALL OF ITS PROPERTIES THAT
ARE USED OR USEFUL IN THE CONDUCT OF ITS BUSINESS (INCLUDING INTELLECTUAL
PROPERTY) IN GOOD WORKING ORDER AND CONDITION, ORDINARY WEAR AND TEAR EXCEPTED,
IN EACH CASE CONSISTENT WITH PAST PRACTICE, AND WILL FROM TIME TO TIME MAKE OR
CAUSE TO BE MADE ALL APPROPRIATE REPAIRS, RENEWALS AND REPLACEMENTS THEREOF,
EXCEPT WHERE THE FAILURE TO DO SO WOULD NOT REASONABLY BE LIKELY TO HAVE A
MATERIAL ADVERSE EFFECT.
(I)
TRANSACTIONS WITH AFFILIATES.
CONDUCT, AND CAUSE EACH OF ITS
SUBSIDIARIES TO CONDUCT, ALL TRANSACTIONS OTHERWISE PERMITTED UNDER THE LOAN
DOCUMENTS WITH ANY OF THEIR AFFILIATES ON TERMS THAT ARE FAIR AND REASONABLE AND
NO LESS FAVORABLE TO SUCH BORROWER OR SUCH SUBSIDIARY THAN IT WOULD OBTAIN IN A
COMPARABLE ARM'S LENGTH
59
TRANSACTION WITH A PERSON NOT AN AFFILIATE, OTHER THAN (I) TRANSACTIONS BETWEEN
OR AMONG THE LOAN PARTIES AND ANY SUBSIDIARIES OF THE U.S. BORROWER;
(II) REASONABLE AND CUSTOMARY FEES PAID TO MEMBERS OF THE U.S. BORROWER'S BOARD
OF DIRECTORS; (III) THE TRANSACTIONS PERMITTED BY SECTION 5.02(F);
(IV) TRANSACTIONS CONSUMMATED AS A PART OF THE RESTRUCTURING AND EXPRESSLY
CONTEMPLATED BY THE PLAN OF REORGANIZATION; AND (V) TRANSACTIONS OTHERWISE
EXPRESSLY PERMITTED HEREUNDER.
(J)
COVENANT TO GUARANTEE OBLIGATIONS AND TO GIVE SECURITY.
WHEN
(I) ANY NEW SUBSIDIARY OF THE U.S. BORROWER IS FORMED OR ACQUIRED BY THE U.S.
BORROWER OR ANY OF ITS SUBSIDIARIES, OR (II) THE ACQUISITION OF ANY PROPERTY,
REAL OR PERSONAL, BY ANY LOAN PARTY IS MADE, AND SUCH PROPERTY, IN THE JUDGMENT
OF THE ADMINISTRATIVE AGENT, SHALL NOT ALREADY BE SUBJECT TO A PERFECTED FIRST
PRIORITY SECURITY INTEREST IN FAVOR OF THE ADMINISTRATIVE AGENT FOR THE BENEFIT
OF THE SECURED PARTIES, THEN, IN EACH CASE AT THE EXPENSE OF THE U.S. BORROWER:
(A)
within 20 days after such formation or acquisition, in the case of
a new Subsidiary that is a Domestic Subsidiary of the U.S. Borrower or any of
its Subsidiaries, cause each such Subsidiary to duly execute and deliver to the
Administrative Agent an Assumption Agreement under which such Subsidiary becomes
a Subsidiary Guarantor and a Grantor (as defined in the Guarantee and Collateral
Agreement); provided that no Subsidiary which is not wholly-owned (directly or
indirectly) by the U.S. Borrower and the organizational documents or agreements
with other shareholders of which prohibit the execution, delivery or performance
of