AND/OR SECTION 5.2, THE RESULTS OF WHICH SHALL RESULT IN CHANGES
IN THE "BORROWING BASE" BASED UPON CHANGES IN THE COMPONENTS THEREOF RELATING TO
SUCH PROPERTY AS NECESSARY AND REQUIRED.
FURTHER, IF A SUBSIDIARY OF THE
BORROWER EXERCISES REINVESTMENT RIGHTS UNDER SECTION 1.8(C) AND THE PROPERTY IN
WHICH SUCH SUBSIDIARY REINVESTS CONSTITUTES EQUIPMENT, MACHINERY AND/OR REAL
PROPERTY THAT THE BORROWER DESIRES TO INCLUDE IN THE "BORROWING BASE" UNDER THE
BORROWING BASE CERTIFICATE, THEN AGENT MAY REQUIRE, AS A CONDITION THERETO,
APPRAISALS OF SUCH PROPERTY THAT OTHERWISE COMPLY WITH THE REQUIREMENTS OF
SECTION 4.2(K).
THE "BORROWING BASE" SHALL BE CALCULATED IN ACCORDANCE WITH THE
TERMS OF THE BORROWING BASE CERTIFICATE.
ARTICLE V - NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Lender shall have any
Commitment hereunder, or any Loan or other Obligation (other than contingent
indemnification Obligations to the extent no claim giving rise thereto has been
asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive
compliance in writing:
5.1
LIMITATION ON LIENS.
THE BORROWER SHALL
NOT, AND SHALL NOT SUFFER OR PERMIT ANY OF ITS SUBSIDIARIES TO, DIRECTLY OR
INDIRECTLY, MAKE, CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY LIEN UPON OR WITH
RESPECT TO ANY PART OF ITS PROPERTY, WHETHER NOW OWNED OR HEREAFTER ACQUIRED,
OTHER THAN, WITH RESPECT TO ITS SUBSIDIARIES, THE FOLLOWING, PROVIDED THE SAME
IS PERMITTED AND SOLELY TO THE EXTENT PERMITTED, UNDER THE HIGH YIELD UNSECURED
DOCUMENTS ("PERMITTED LIENS"):
(A)
ANY LIEN EXISTING ON THE PROPERTY OF THE
BORROWER'S SUBSIDIARIES ON THE RESTATEMENT EFFECTIVE DATE AND SET FORTH IN
SCHEDULE 5.1 SECURING INDEBTEDNESS OUTSTANDING ON SUCH DATE AND PERMITTED BY
SUBSECTION 5.5(C), INCLUDING REPLACEMENT LIENS ON THE PROPERTY CURRENTLY SUBJECT
TO SUCH LIENS SECURING INDEBTEDNESS PERMITTED BY SUBSECTION 5.5(C);
(B)
ANY LIEN CREATED UNDER ANY LOAN DOCUMENT;
(C)
LIENS FOR TAXES, FEES, ASSESSMENTS OR OTHER
GOVERNMENTAL CHARGES (I) WHICH ARE NOT DELINQUENT OR REMAIN PAYABLE WITHOUT
PENALTY OR (II) THE NON-PAYMENT OF WHICH IS PERMITTED BY SECTION 4.7; PROVIDED,
THAT IN RESPECT OF THIS CLAUSE (II), ALL SUCH LIENS SECURE CLAIMS IN THE
AGGREGATE AT ANY TIME OUTSTANDING FOR THE BORROWER'S SUBSIDIARIES NOT EXCEEDING
$500,000;
36
(D)
CARRIERS', WAREHOUSEMEN'S, MECHANICS',
LANDLORDS', MATERIALMEN'S, REPAIRMEN'S OR OTHER SIMILAR LIENS ARISING IN THE
ORDINARY COURSE OF BUSINESS WHICH ARE NOT DELINQUENT FOR MORE THAN NINETY (90)
DAYS OR REMAIN PAYABLE WITHOUT PENALTY OR WHICH ARE BEING CONTESTED IN GOOD
FAITH AND BY APPROPRIATE PROCEEDINGS DILIGENTLY PROSECUTED, WHICH PROCEEDINGS
HAVE THE EFFECT OF PREVENTING THE FORFEITURE OR SALE OF THE PROPERTY SUBJECT
THERETO AND FOR WHICH ADEQUATE RESERVES IN ACCORDANCE WITH GAAP ARE BEING
MAINTAINED;
(E)
LIENS (OTHER THAN ANY LIEN IMPOSED BY
ERISA) CONSISTING OF PLEDGES OR DEPOSITS REQUIRED IN THE ORDINARY COURSE OF
BUSINESS IN CONNECTION WITH WORKERS' COMPENSATION, UNEMPLOYMENT INSURANCE AND
OTHER SOCIAL SECURITY LEGISLATION OR TO SECURE THE PERFORMANCE OF TENDERS,
STATUTORY OBLIGATIONS, SURETY, STAY, CUSTOMS AND APPEALS BONDS, BIDS, LEASES,
GOVERNMENTAL CONTRACT, TRADE CONTRACTS, PERFORMANCE AND RETURN OF MONEY BONDS
AND OTHER SIMILAR OBLIGATIONS (EXCLUSIVE OF