being understood and agreed that "commercially
reasonable efforts" shall in any event include the payment by Holdings or the
Borrower of customary rating agency fees and cooperation with information and
data requests by Moody's and S&P in connection with their ratings process).
10.13.
Merger; Target Refinancing.
Holdings and the Borrower
hereby agree and covenant to:
(A)
CONSUMMATE THE MERGER IN ACCORDANCE IN ALL
MATERIAL RESPECTS WITH THE TERMS AND CONDITIONS OF THE MERGER AGREEMENT AND ALL
APPLICABLE LAW AS PROMPTLY AS PRACTICABLE AND IN ANY EVENT ON OR PRIOR TO THE
EARLIER TO OCCUR OF (X) THE 35TH DAY AFTER THE 90% CONDITION HAS BEEN SATISFIED
AND (Y) OCTOBER 15, 2010;
(B)
WITHIN 50 DAYS AFTER THE MERGER CLOSING
DATE, CAUSE THE REDEMPTION IN FULL OF ALL THEN OUTSTANDING TARGET EXISTING NOTES
(THE "TARGET REFINANCING"), WHICH TARGET EXISTING NOTES SHALL AT SUCH TIME BE
PERMANENTLY RETIRED; PROVIDED THAT IF ANY TARGET EXISTING NOTES ARE OUTSTANDING
ON THE MERGER CLOSING DATE, BORROWER SHALL CAUSE TARGET OR TARGET SUB TO ISSUE
(ON THE MERGER CLOSING DATE) AN IRREVOCABLE NOTICE OF REDEMPTION OF ALL THEN
OUTSTANDING TARGET EXISTING NOTES IN ACCORDANCE WITH THE REQUIREMENTS OF THE
INDENTURE GOVERNING THE TARGET EXISTING NOTES (THE "TARGET EXISTING NOTES
INDENTURE") AND SHALL ON THE MERGER CLOSING DATE DEPOSIT WITH THE TRUSTEE UNDER
THE TARGET EXISTING NOTES INDENTURE CASH IN THE AGGREGATE AMOUNT NEEDED TO
EFFECT SUCH REDEMPTIONS (INCLUDING AMOUNTS NEEDS FOR ACCRUED INTEREST AND ANY
APPLICABLE MAKE WHOLE PREMIUMS); AND
(C)
EFFECT THE TRANSACTION IN ALL MATERIAL
RESPECTS IN ACCORDANCE WITH THE TRANSACTION SUMMARY.
SECTION 11.
Negative Covenants.
Each of Holdings and
the Borrower hereby covenants and agrees that on and after the Effective Date
and until the Total Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings (in each case, together with interest thereon),
Fees and all other Obligations (other than indemnities that are not then due and
payable) incurred hereunder and thereunder, are paid in full:
11.01.
Indebtedness.
Holdings will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
106
(I)
INDEBTEDNESS (A) INCURRED PURSUANT TO
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND (B) PERMITTED REFINANCING
INDEBTEDNESS INCURRED WITH RESPECT TO INDEBTEDNESS THERETOFORE OUTSTANDING
PURSUANT TO THIS CLAUSE (I); PROVIDED THAT (X) PERMITTED REFINANCING
INDEBTEDNESS INCURRED PURSUANT TO THIS CLAUSE (I)(B) MAY ONLY BE PURSUANT TO ONE
OR MORE ISSUES OF PERMITTED SECOND LIEN NOTES OR PERMITTED UNSECURED NOTES AND
(Y) IF ANY SUCH PERMITTED REFINANCING INDEBTEDNESS IS INCURRED IN RESPECT OF
REVOLVING LOAN COMMITMENTS OR OUTSTANDINGS PURSUANT THERETO (WHICH SHALL ONLY BE
PERMITTED IN ACCORDANCE WITH THE REPAYMENT PRIORITIES PURSUANT TO
SECTION 5.02(G)), THERE SHALL BE REQUIRED TO BE A PERMANENT REDUCTION TO THE
TOTAL REVOLVING LOAN COMMITMENT IN AN AMOUNT EQUAL TO THE RESPECTIVE PERMITTED
REFINANCING INDEBTEDNESS (IN WHICH CASE REVOLVING LOANS OR SWINGLINE LOANS THEN
OUTSTANDING PURSUANT TO THE REVOLVING LOAN COMMITMENTS SHALL BE REQUIRED TO BE
REPAID WITH SUCH AMOUNTS