PARTIES.
THE BORROWER WILL PROVIDE TO
THE ADMINISTRATIVE AGENT, FROM TIME TO TIME UPON REQUEST, EVIDENCE REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT AS TO THE PERFECTION AND PRIORITY OF
THE LIENS CREATED OR INTENDED TO BE CREATED BY THE SECURITY DOCUMENTS.
SECTION 5.13.
CERTAIN POST-CLOSING COLLATERAL OBLIGATIONS.
AS PROMPTLY AS
PRACTICABLE, AND IN ANY EVENT WITHIN 30 DAYS, AFTER THE EFFECTIVE DATE,
THE
BORROWER AND EACH OTHER LOAN PARTY WILL DELIVER TO THE ADMINISTRATIVE AGENT ANY
PLEDGE OF EQUITY INTERESTS IN ANY FOREIGN SUBSIDIARY (AND ALL THE RELATED
OPINIONS) THAT WOULD HAVE BEEN REQUIRED TO BE DELIVERED ON THE EFFECTIVE DATE
BUT FOR THE PENULTIMATE PARAGRAPH OF SECTION 4.01, IN EACH CASE EXCEPT TO THE
EXTENT OTHERWISE AGREED BY THE ADMINISTRATIVE AGENT PURSUANT TO ITS AUTHORITY AS
SET FORTH IN THE DEFINITION OF THE TERM "GUARANTEE AND COLLATERAL REQUIREMENT".
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments shall have expired or been terminated, the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full, all Letters of Credit shall have expired or been terminated and all
LC Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Lenders that:
SECTION 6.01.
INDEBTEDNESS; CERTAIN EQUITY SECURITIES.
(A)
NONE OF THE
BORROWER OR ANY SUBSIDIARY WILL CREATE, INCUR, ASSUME OR PERMIT TO EXIST ANY
INDEBTEDNESS, EXCEPT:
(I)
INDEBTEDNESS CREATED UNDER THE LOAN DOCUMENTS;
(II)
INDEBTEDNESS EXISTING ON THE DATE HEREOF AND SET FORTH ON
SCHEDULE 6.01 AND REFINANCING INDEBTEDNESS IN RESPECT THEREOF;
(III)
THE WARRANTS, TO THE EXTENT THEY CONSTITUTE DISQUALIFIED EQUITY
INTERESTS;
(IV)
INDEBTEDNESS OF THE BORROWER TO ANY SUBSIDIARY OR OF ANY SUBSIDIARY TO
THE BORROWER OR ANY OTHER SUBSIDIARY; PROVIDED THAT (A) SUCH INDEBTEDNESS SHALL
NOT HAVE BEEN TRANSFERRED OR PLEDGED TO ANY OTHER PERSON, (B) ANY SUCH
INDEBTEDNESS OWING BY ANY LOAN PARTY SHALL BE SUBORDINATED TO THE LOAN DOCUMENTS
OBLIGATIONS ON TERMS CUSTOMARY FOR INTERCOMPANY SUBORDINATED INDEBTEDNESS, AS
REASONABLY DETERMINED BY THE ADMINISTRATIVE AGENT, AND (C) ANY SUCH INDEBTEDNESS
OF ANY SUBSIDIARY
69
THAT IS NOT A LOAN PARTY TO ANY LOAN PARTY SHALL BE INCURRED IN COMPLIANCE WITH
SECTION 6.04;
(V)
GUARANTEES INCURRED IN COMPLIANCE WITH SECTION 6.04(E);
(VI)
INDEBTEDNESS OF THE BORROWER OR ANY SUBSIDIARY INCURRED TO
FINANCE THE ACQUISITION, CONSTRUCTION OR IMPROVEMENT OF ANY FIXED OR CAPITAL
ASSETS, INCLUDING CAPITAL LEASE OBLIGATIONS, SYNTHETIC LEASE OBLIGATIONS AND ANY
INDEBTEDNESS ASSUMED IN CONNECTION WITH THE ACQUISITION OF ANY SUCH ASSETS, AND
REFINANCING INDEBTEDNESS IN RESPECT THEREOF; PROVIDED THAT (A) SUCH INDEBTEDNESS
IS INCURRED PRIOR TO OR WITHIN 90 DAYS AFTER SUCH ACQUISITION OR THE COMPLETION
OF SUCH CONSTRUCTION OR IMPROVEMENT AND (B) THE AGGREGATE PRINCIPAL AMOUNT OF
INDEBTEDNESS PERMITTED BY THIS CLAUSE (VI) SHALL NOT EXCEED US$40,000,000 AT ANY
TIME OUTSTANDING;
(VII)
INDEBTEDNESS OF ANY PERSON THAT BECOMES A SUBSIDIARY (OR OF ANY
PERSON NOT PREVIOUSLY A SUBSIDIARY THAT IS MERGED OR CONSOLIDATED WITH OR INTO A
SUBSIDIARY IN A TRANSACTION PERMITTED HEREUNDER) AFTER THE DATE HEREOF, OR
INDEBTEDNESS OF ANY PERSON THAT IS ASSUMED BY