AND CERTAIN OTHER AGREEMENTS; ETC.
(A)
AMEND OR MODIFY IN ANY MANNER MATERIALLY ADVERSE TO THE LENDERS, OR GRANT
ANY WAIVER OR RELEASE UNDER OR TERMINATE IN ANY MANNER (IF SUCH GRANTING OR
TERMINATION SHALL BE MATERIALLY ADVERSE TO THE LENDERS), THE ARTICLES OR
CERTIFICATE OF INCORPORATION, BY‐LAWS, LIMITED LIABILITY COMPANY OPERATING
AGREEMENT, PARTNERSHIP AGREEMENT OR OTHER ORGANIZATIONAL DOCUMENTS OF THE
COMPANY OR ANY OF THE SUBSIDIARIES OR THE MERGER AGREEMENT.
(B)
(I)
MAKE, OR AGREE OR OFFER TO PAY OR MAKE, DIRECTLY OR
INDIRECTLY, ANY PAYMENT OR OTHER DISTRIBUTION (WHETHER IN CASH, SECURITIES OR
OTHER PROPERTY) OF OR IN RESPECT OF PRINCIPAL OF OR INTEREST ON THE LOANS UNDER
THE SENIOR SUBORDINATED NOTES OR ANY PERMITTED REFINANCING INDEBTEDNESS IN
RESPECT OF THE SENIOR SUBORDINATED NOTES OR ANY PREFERRED EQUITY INTERESTS OR
ANY DISQUALIFIED STOCK ("JUNIOR FINANCING"), OR ANY PAYMENT OR OTHER
DISTRIBUTION (WHETHER IN CASH, SECURITIES OR OTHER PROPERTY), INCLUDING ANY
SINKING FUND OR SIMILAR DEPOSIT, ON ACCOUNT OF THE PURCHASE, REDEMPTION,
RETIREMENT, ACQUISITION, CANCELLATION OR TERMINATION IN RESPECT OF ANY JUNIOR
FINANCING EXCEPT FOR (A) REFINANCINGS PERMITTED BY SECTION 6.01(L) OR (R), (B)
PAYMENTS OF REGULARLY SCHEDULED INTEREST, AND, TO THE EXTENT THIS AGREEMENT IS
THEN IN EFFECT, PRINCIPAL ON THE SCHEDULED MATURITY DATE OF ANY JUNIOR
FINANCING, (C) PAYMENTS OR DISTRIBUTIONS IN RESPECT OF ALL OR ANY PORTION OF THE
JUNIOR FINANCING WITH THE PROCEEDS CONTRIBUTED TO THE COMPANY BY HOLDINGS FROM
THE ISSUANCE, SALE OR EXCHANGE BY HOLDINGS (OR ANY PARENT ENTITY) OF EQUITY
INTERESTS MADE WITHIN EIGHTEEN MONTHS PRIOR THERETO, (D) THE CONVERSION OF ANY
JUNIOR FINANCING TO EQUITY INTERESTS OF HOLDINGS OR ANY PARENT ENTITY; AND
(E) SO LONG AS NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING OR
WOULD RESULT THEREFROM AND AFTER GIVING EFFECT TO SUCH PAYMENT OR DISTRIBUTION
THE COMPANY WOULD BE IN PRO FORMA COMPLIANCE, PAYMENTS OR DISTRIBUTIONS IN
RESPECT OF JUNIOR FINANCINGS PRIOR TO THEIR SCHEDULED MATURITY MADE, IN AN
AGGREGATE AMOUNT, NOT TO EXCEED THE SUM OF (X) $60 MILLION AND (Y) THE
CUMULATIVE CREDIT; OR
(ii)
Amend or modify, or permit the amendment or modification of, any
provision of Junior Financing, or any agreement, document or instrument
evidencing or relating thereto, other than amendments or modifications that
(A) are not in any manner materially adverse to Lenders and that do not affect
the subordination or payment provisions thereof (if any) in a manner adverse to
the Lenders and (B) otherwise comply with the definition of "Permitted
Refinancing Indebtedness".
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(C)
PERMIT ANY MATERIAL SUBSIDIARY TO ENTER INTO ANY AGREEMENT OR
INSTRUMENT THAT BY ITS TERMS RESTRICTS (I) THE PAYMENT OF DIVIDENDS OR
DISTRIBUTIONS OR THE MAKING OF CASH ADVANCES TO THE COMPANY OR ANY SUBSIDIARY
THAT IS A DIRECT OR INDIRECT SHAREHOLDER OF SUCH SUBSIDIARY OR (II) THE GRANTING
OF LIENS BY THE COMPANY OR SUCH MATERIAL SUBSIDIARY PURSUANT TO THE SECURITY
DOCUMENTS, IN EACH CASE OTHER THAN THOSE ARISING UNDER ANY LOAN DOCUMENT,
EXCEPT, IN EACH CASE, RESTRICTIONS EXISTING BY REASON OF: