THAT WAS NOT ACTUALLY SATISFIED,
BUT RATHER DEEMED SATISFIED ON THE CLOSING DATE PURSUANT TO THE PROVISIONS SET
FORTH IN SUBSECTION 5.1, AND IN ANY EVENT TO PROVIDE SUCH GUARANTEES AND TO
SATISFY SUCH OTHER CONDITIONS WITHIN THE APPLICABLE TIME PERIODS SET FORTH ON
SCHEDULE 6.4, AS SUCH TIME PERIODS MAY BE EXTENDED BY THE ADMINISTRATIVE AGENT,
IN ITS SOLE DISCRETION.
6.5
STATEMENT AS TO DEFAULT.
THE BORROWER SHALL DELIVER TO THE
ADMINISTRATIVE AGENT, WITHIN 120 DAYS AFTER THE END OF EACH FISCAL YEAR OF THE
BORROWER ENDING AFTER THE CLOSING DATE, A CERTIFICATE OF A RESPONSIBLE OFFICER
TO THE EFFECT THAT TO THE BEST KNOWLEDGE OF THE SIGNER THEREOF ON BEHALF OF THE
BORROWER, THE BORROWER IS OR IS NOT IN DEFAULT IN THE PERFORMANCE AND OBSERVANCE
OF ANY OF THE TERMS, PROVISIONS AND CONDITIONS OF THIS AGREEMENT (WITHOUT REGARD
TO ANY PERIOD OF GRACE OR REQUIREMENT OF NOTICE PROVIDED HEREUNDER) AND, IF THE
BORROWER (THROUGH ITS OWN ACTION OR OMISSION OR THROUGH THE ACTION OR OMISSION
OF ANY LOAN PARTY, AS APPLICABLE) SHALL BE IN DEFAULT, SPECIFYING ALL SUCH
DEFAULTS AND THE NATURE AND STATUS THEREOF OF WHICH SUCH SIGNER MAY HAVE
KNOWLEDGE.
THE INDIVIDUAL SIGNING ANY CERTIFICATE GIVEN BY ANY PERSON PURSUANT
TO THIS SUBSECTION 6.5 SHALL BE THE PRINCIPAL EXECUTIVE, FINANCIAL OR ACCOUNTING
OFFICER OF SUCH PERSON.
6.6
NOTICE OF DEFAULT.
THE BORROWER SHALL DELIVER TO THE
ADMINISTRATIVE AGENT, WITHIN 30 DAYS AFTER THE OCCURRENCE THEREOF, WRITTEN
NOTICE IN THE FORM OF A CERTIFICATE OF A RESPONSIBLE OFFICER OF ANY EVENT OF
DEFAULT UNDER SUBSECTION 8(F), (J) OR (K), AND ANY EVENT THAT WITH THE GIVING OF
NOTICE OR THE LAPSE OF TIME WOULD BECOME AN EVENT OF DEFAULT UNDER SUBSECTION
8(D) AND (E), ITS STATUS AND WHAT ACTION THE BORROWER IS TAKING OR PROPOSES TO
TAKE WITH RESPECT THERETO.
SECTION 7
NEGATIVE COVENANTS.
The Borrower hereby agrees that, from and after the Closing Date, and thereafter
until payment in full of the Loans and any other amount then due and owing to
any Lender or any Agent hereunder and under any Senior Interim Loan Note, and no
other amounts are owing hereunder:
7.1
LIMITATION ON INDEBTEDNESS.
(A)
THE BORROWER WILL NOT, AND WILL NOT PERMIT ANY RESTRICTED
SUBSIDIARY TO, INCUR ANY INDEBTEDNESS; PROVIDED, HOWEVER, THAT THE BORROWER OR
ANY RESTRICTED SUBSIDIARY MAY INCUR INDEBTEDNESS IF ON THE DATE OF THE
INCURRENCE OF SUCH INDEBTEDNESS, AFTER GIVING EFFECT TO THE INCURRENCE THEREOF,
THE CONSOLIDATED COVERAGE RATIO WOULD BE EQUAL TO OR GREATER THAN 2.00:1.00;
PROVIDED, FURTHER, THAT THE AGGREGATE PRINCIPAL AMOUNT OF INDEBTEDNESS THAT MAY
BE INCURRED PURSUANT TO THE FOREGOING BY RESTRICTED SUBSIDIARIES THAT ARE NOT
SUBSIDIARY GUARANTORS SHALL NOT EXCEED $150.0 MILLION AT ANY ONE TIME
OUTSTANDING.
(B)
NOTWITHSTANDING THE FOREGOING PARAGRAPH (A), THE BORROWER AND ITS
RESTRICTED SUBSIDIARIES MAY INCUR THE FOLLOWING INDEBTEDNESS:
76
(I)
INDEBTEDNESS INCURRED PURSUANT TO ANY CREDIT FACILITY (INCLUDING
BUT NOT LIMITED TO IN RESPECT OF LETTERS OF CREDIT OR BANKERS' ACCEPTANCES
ISSUED OR CREATED THEREUNDER) AND INDEBTEDNESS