ORDINARY COURSE OF BUSINESS; AND
(16)
PAYMENTS BY THE BORROWER (AND ANY DIRECT OR INDIRECT PARENT
THEREOF) AND ITS SUBSIDIARIES PURSUANT TO TAX SHARING AGREEMENTS AMONG THE
BORROWER (AND ANY SUCH PARENT) AND ITS SUBSIDIARIES ON CUSTOMARY TERMS TO THE
EXTENT ATTRIBUTABLE TO THE OWNERSHIP OR OPERATION OF THE BORROWER AND ITS
SUBSIDIARIES; PROVIDED THAT IN EACH CASE THE AMOUNT OF SUCH PAYMENTS IN ANY
FISCAL YEAR DOES NOT EXCEED THE AMOUNT THAT THE BORROWER, ITS RESTRICTED
SUBSIDIARIES AND ITS UNRESTRICTED SUBSIDIARIES (TO THE EXTENT OF AMOUNTS
RECEIVED FROM UNRESTRICTED SUBSIDIARIES) WOULD BE REQUIRED TO PAY IN RESPECT OF
FOREIGN, FEDERAL, STATE AND LOCAL TAXES FOR SUCH FISCAL YEAR WERE THE BORROWER
AND ITS RESTRICTED SUBSIDIARIES (TO THE EXTENT DESCRIBED ABOVE) TO PAY SUCH
TAXES SEPARATELY FROM ANY SUCH PARENT ENTITY.
9.10.
LIENS. THE BORROWER SHALL NOT, AND SHALL NOT PERMIT ANY GUARANTOR TO,
DIRECTLY OR INDIRECTLY, CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY LIEN
(EXCEPT PERMITTED LIENS) THAT SECURES OBLIGATIONS UNDER ANY INDEBTEDNESS RANKING
PARI PASSU WITH OR SUBORDINATED TO THE LOANS OR ANY RELATED GUARANTEE, ON ANY
ASSET OR PROPERTY OF THE BORROWER OR ANY GUARANTOR, OR ANY INCOME OR PROFITS
THEREFROM, OR ASSIGN OR CONVEY ANY RIGHT TO RECEIVE INCOME THEREFROM, UNLESS:
(1)
IN THE CASE OF LIENS SECURING SUBORDINATED INDEBTEDNESS, THE
LOANS AND RELATED GUARANTEES ARE SECURED BY A LIEN ON SUCH PROPERTY, ASSETS OR
PROCEEDS THAT IS SENIOR IN PRIORITY TO SUCH LIENS; OR
(2)
IN ALL OTHER CASES, THE LOANS OR THE GUARANTEES ARE EQUALLY
AND RATABLY SECURED OR ARE SECURED BY A LIEN ON SUCH PROPERTY, ASSETS OR
PROCEEDS THAT IS SENIOR IN PRIORITY TO SUCH LIENS;
except that the foregoing shall not apply to Liens securing Senior Indebtedness
of the Borrower or any Guarantor.
9.11.
CORPORATE EXISTENCE. SUBJECT TO SECTIONS 9.14 AND 9.15, THE BORROWER
SHALL DO OR CAUSE TO BE DONE ALL THINGS NECESSARY TO PRESERVE AND KEEP IN FULL
FORCE AND EFFECT (I) ITS CORPORATE EXISTENCE, AND THE CORPORATE, PARTNERSHIP OR
OTHER EXISTENCE OF EACH OF ITS RESTRICTED SUBSIDIARIES, IN ACCORDANCE WITH THE
RESPECTIVE ORGANIZATIONAL DOCUMENTS (AS THE SAME MAY BE AMENDED FROM TIME TO
TIME) OF THE BORROWER OR ANY SUCH RESTRICTED SUBSIDIARY AND (II) THE RIGHTS
(CHARTER AND STATUTORY), LICENSES AND FRANCHISES OF THE BORROWER AND ITS
RESTRICTED SUBSIDIARIES; PROVIDED THAT THE BORROWER SHALL NOT BE REQUIRED TO
PRESERVE ANY SUCH RIGHT, LICENSE OR FRANCHISE, OR THE CORPORATE, PARTNERSHIP OR
OTHER EXISTENCE OF ANY OF ITS RESTRICTED SUBSIDIARIES, IF THE BORROWER IN GOOD
FAITH SHALL DETERMINE THAT THE PRESERVATION THEREOF IS NO LONGER DESIRABLE IN
THE CONDUCT OF THE BUSINESS OF THE BORROWER AND ITS RESTRICTED SUBSIDIARIES,
TAKEN AS A WHOLE.
96
9.12.
OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(A)
IF A CHANGE OF CONTROL OCCURS, UNLESS OTHERWISE PREPAID IN
ACCORDANCE WITH SECTION 5.2(A) OR SECTION 9.8 HEREOF, THE BORROWER SHALL MAKE AN
OFFER TO PREPAY ALL OF THE LOANS PURSUANT TO THE OFFER DESCRIBED BELOW (THE
"CHANGE OF CONTROL OFFER") AT A PRICE IN