SECURED NOTES (AND
IF SUCH NOTES ARE SUBORDINATED SECURED NOTES, SUBJECT TO AN INTERCREDITOR
AGREEMENT, IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE
AGENT) THAT ARE OBLIGATIONS OF THE LOAN PARTIES PROVIDED THAT SUCH NOTES ARE ON
SUCH CUSTOMARY TERMS AND CONDITIONS AS ARE THEN AVAILABLE IN THE MARKET FOR
ISSUERS OF SIMILAR CREDIT PROFILE;
ANY OTHER INDEBTEDNESS OF ANY LOAN PARTY WHICH IS ABSOLUTELY AND UNCONDITIONALLY
SUBORDINATED IN PAYMENT TO THE LOANS TO THE LENDERS; PROVIDED THAT THE TERMS AND
CONDITIONS THEREOF ARE ACCEPTABLE TO THE ADMINISTRATIVE AGENT AND EACH LENDER IN
ITS SOLE DISCRETION EXERCISED IN GOOD FAITH; AND
PENSION LIABILITIES OF THE LOAN PARTIES THAT DO NOT RESULT IN THE
REPRESENTATIONS AND WARRANTIES IN SECTION 6.11 BEING INCORRECT IN ANY MATERIAL
RESPECT.
For the avoidance of doubt, notwithstanding anything to the contrary set forth
in this Agreement or any Loan Document, the Loan Parties may issue, guarantee,
or Refinance the Senior Notes, any Additional Notes and any Intercompany
Indebtedness without the consent of the Administrative Agent or any of the
Lenders, provided, that any such Refinancing complies with the applicable
requirements set forth in the definition of "Senior Notes," "Additional Notes,"
or "Intercompany Indebtedness," as the case may be.
LIMITATION ON LIENS.
CREATE OR SUFFER TO EXIST ANY LIENS OR CLAIMS UPON OR AGAINST ANY OF ITS
PROPERTY OR ASSETS NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT PERMITTED
ENCUMBRANCES. WITHOUT LIMITING THE FOREGOING, NO ADDITIONAL LIENS ON ANY OF SUCH
PROPERTY AND/OR ASSETS OF IT, SMI OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, SHALL
BE OFFERED OR GRANTED TO ANY OF THE FOLLOWING PERSONS: THE SENIOR NOTES TRUSTEE,
THE SENIOR NOTE HOLDERS AND/OR ANY PERSONS WHO UNDER THIS AGREEMENT THE LENDERS
ARE ENTITLED TO HAVE SUCH BORROWER CAUSE TO ENTER INTO AN INTERCREDITOR
AGREEMENT WITH THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE LENDERS, UNLESS
AND UNTIL THE LENDERS ARE OFFERED AND GRANTED A FIRST AND PARAMOUNT LIEN IN THE
IDENTICAL PROPERTY AND/OR ASSETS INTENDED TO BE OFFERED OR GRANTED TO SUCH OTHER
PERSONS, AS ADDITIONAL COLLATERAL FOR ALL OF THE LOANS AND AN INTERCREDITOR
AGREEMENT WITH ANY SUCH PERSON(S) IS IN PLACE, IN FORM AND SUBSTANCE ACCEPTABLE
TO THE ADMINISTRATIVE AGENT, IN ITS SOLE DISCRETION, EXERCISED IN GOOD FAITH.
ENTER INTO ANY TRANSACTION WHICH MATERIALLY AND ADVERSELY AFFECTS THE COLLATERAL
OR ITS ABILITY TO REPAY THE LOANS.
LIMITATION ON GUARANTEE OBLIGATIONS.
BE OR BECOME LIABLE IN RESPECT OF ANY GUARANTEE OBLIGATION EXCEPT (I) GUARANTEE
OBLIGATIONS IN CONNECTION WITH THE SENIOR NOTES, (II) GUARANTEE OBLIGATIONS IN
CONNECTION WITH THE ADDITIONAL NOTES, (III) ITT GUARANTEES FROM TIME TO TIME
OUTSTANDING HAVING A MAXIMUM LIABILITY AT ANY ONE TIME OUTSTANDING NOT TO EXCEED
$2,000,000 AND (IV) OTHER GUARANTEE OBLIGATIONS (A) THAT COULD OTHERWISE HAVE
BEEN INCURRED IN THE ORDINARY COURSE OF BUSINESS BUT
57
FOR THE PROVISIONS OF THIS SECTION 9.4(A), AND (B) FOR WHICH WRITTEN CONSENT
FROM THE ADMINISTRATIVE AGENT HAS BEEN OBTAINED, WHICH CONSENT WILL NOT BE
UNREASONABLY WITHHELD.
WITHOUT LIMITING THE FOREGOING, NO ADDITIONAL GUARANTEES FROM