AND
145
(O)
UNSECURED INDEBTEDNESS OF ANY BORROWER OR GUARANTOR ARISING AFTER THE
EFFECTIVE DATE TO ANY THIRD PERSON (BUT NOT TO ANY OTHER BORROWER OR GUARANTOR)
NOT SUBJECT TO THE OTHER TERMS HEREOF, PROVIDED, THAT, EACH OF THE FOLLOWING
CONDITIONS IS SATISFIED:
(I)
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOT LESS THAN THIRTY (30)
DAYS PRIOR WRITTEN NOTICE OF THE INTENTION OF SUCH BORROWER OR GUARANTOR TO
INCUR SUCH INDEBTEDNESS, WHICH NOTICE SHALL SET FORTH IN REASONABLE DETAIL
SATISFACTORY TO ADMINISTRATIVE AGENT THE AMOUNT OF SUCH INDEBTEDNESS, THE PERSON
OR PERSONS TO WHOM SUCH INDEBTEDNESS WILL BE OWED, THE INTEREST RATE, THE
SCHEDULE OF REPAYMENTS AND MATURITY DATE WITH RESPECT THERETO AND SUCH OTHER
INFORMATION AS ADMINISTRATIVE AGENT MAY REQUEST WITH RESPECT THERETO,
(II)
SUCH INDEBTEDNESS SHALL HAVE A MATURITY DATE NO EARLIER THAN SIX
(6) MONTHS AFTER THE MATURITY DATE AND SHALL NOT INCLUDE TERMS AND CONDITIONS
WITH RESPECT TO ANY BORROWER OR GUARANTOR WHICH ARE MORE BURDENSOME OR
RESTRICTIVE IN ANY MATERIAL RESPECT THAN THOSE CONTAINED IN THIS AGREEMENT,
TAKEN AS A WHOLE, EXCEPT WITH RESPECT TO FINANCIAL COVENANTS, PROVIDED, THAT,
PRIOR TO INCURRING SUCH INDEBTEDNESS, BORROWERS SHALL HAVE DELIVERED TO
ADMINISTRATIVE AGENT PROJECTIONS, IN FORM AND SUBSTANCE SATISFACTORY TO
ADMINISTRATIVE AGENT, WHICH SHOW THAT BORROWERS WILL BE IN COMPLIANCE WITH SUCH
FINANCIAL COVENANTS THROUGH THE END OF THE TERM OF SUCH INDEBTEDNESS,
(III)
AS OF THE DATE OF INCURRING SUCH INDEBTEDNESS, AND AFTER GIVING
EFFECT THERETO, THE RATIO OF TOTAL FUNDED INDEBTEDNESS TO PRO-FORMA EBITDA SHALL
NOT EXCEED 4.0 TO 1.0,
(IV)
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED TRUE, CORRECT AND COMPLETE
COPIES OF ALL AGREEMENTS, DOCUMENTS OR INSTRUMENTS EVIDENCING OR OTHERWISE
RELATED TO SUCH INDEBTEDNESS, IN EACH CASE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO ADMINISTRATIVE AGENT,
(V)
BORROWERS AND GUARANTORS SHALL NOT, DIRECTLY OR INDIRECTLY, MAKE ANY
PAYMENTS IN RESPECT OF SUCH INDEBTEDNESS, EXCEPT
THAT
BORROWERS MAY MAKE
REGULARLY SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST IN RESPECT OF SUCH
INDEBTEDNESS SO LONG AS, AS OF THE DATE OF ANY SUCH PAYMENT AND AFTER GIVING
EFFECT THERETO, EXCESS AVAILABILITY SHALL BE NOT LESS THAN FIFTEEN (15%) PERCENT
OF THE MAXIMUM CREDIT,
(VI)
BORROWERS AND GUARANTORS SHALL NOT, DIRECTLY OR INDIRECTLY, (A) AMEND,
MODIFY, ALTER OR CHANGE THE TERMS OF SUCH INDEBTEDNESS OR ANY AGREEMENT,
DOCUMENT OR INSTRUMENT RELATED THERETO, EXCEPT, THAT, BORROWERS OR GUARANTORS
MAY, AFTER PRIOR WRITTEN NOTICE TO ADMINISTRATIVE AGENT, AMEND, MODIFY, ALTER OR
CHANGE THE TERMS THEREOF SO AS TO EXTEND THE MATURITY THEREOF, OR DEFER THE
TIMING OF ANY PAYMENTS IN RESPECT THEREOF, OR TO FORGIVE OR CANCEL ANY PORTION
OF SUCH INDEBTEDNESS (OTHER THAN PURSUANT TO PAYMENTS THEREOF), OR TO REDUCE THE
INTEREST RATE OR ANY FEES IN CONNECTION THEREWITH, OR (B) REDEEM, RETIRE,
DEFEASE, PURCHASE OR OTHERWISE ACQUIRE SUCH INDEBTEDNESS, OR SET ASIDE OR
OTHERWISE DEPOSIT OR INVEST ANY SUMS FOR SUCH PURPOSE (EXCEPT PURSUANT TO
PAYMENTS PERMITTED IN CLAUSE (O)(V) ABOVE),
(VII)
BORROWERS AND GUARANTORS SHALL FURNISH TO ADMINISTRATIVE AGENT ALL
NOTICES OR DEMANDS IN CONNECTION WITH SUCH INDEBTEDNESS