WORKING
CAPITAL REQUIREMENTS OF SUCH RESTRICTED SUBSIDIARIES IN THE ORDINARY COURSE OF
BUSINESS, OR (II) ANY RESTRICTED SUBSIDIARY THAT IS A WHOLLY-OWNED SUBSIDIARY OF
BORROWER TO BORROWER; PROVIDED, HOWEVER, THAT UPON THE REQUEST OF ADMINISTRATIVE
AGENT AT ANY TIME, ANY SUCH DEBT SHALL BE EVIDENCED BY PROMISSORY NOTES HAVING
TERMS REASONABLY SATISFACTORY TO ADMINISTRATIVE AGENT, AND THE SOLE ORIGINALLY
EXECUTED COUNTERPARTS OF WHICH SHALL BE PLEDGED AND DELIVERED TO ADMINISTRATIVE
AGENT, FOR THE BENEFIT OF ADMINISTRATIVE AGENT AND LENDERS, AS SECURITY FOR THE
OBLIGATIONS;
(D)
GUARANTEES BY BORROWER OF DEBT OF ANY RESTRICTED SUBSIDIARY
PERMITTED HEREUNDER AND BY ANY RESTRICTED SUBSIDIARY OF DEBT OF BORROWER OR ANY
OTHER RESTRICTED SUBSIDIARY PERMITTED HEREUNDER;
(E)
DEBT OF BORROWER OR ANY SUBSIDIARY INCURRED TO FINANCE THE
ACQUISITION, CONSTRUCTION OR IMPROVEMENT OF ANY FIXED OR CAPITAL ASSETS,
INCLUDING CAPITAL LEASE OBLIGATIONS AND ANY DEBT ASSUMED IN CONNECTION WITH THE
ACQUISITION OF ANY SUCH ASSETS OR SECURED BY A LIEN ON ANY SUCH ASSETS PRIOR TO
THE ACQUISITION THEREOF, AND EXTENSIONS, RENEWALS AND REPLACEMENTS OF ANY SUCH
DEBT THAT DO NOT INCREASE THE OUTSTANDING PRINCIPAL AMOUNT THEREOF; PROVIDED
THAT THE AGGREGATE PRINCIPAL AMOUNT OF DEBT PERMITTED BY THIS CLAUSE (E) SHALL
NOT EXCEED $5,000,000 AT ANY TIME OUTSTANDING;
(F)
DEBT, IF ANY, ARISING UNDER SWAP CONTRACTS, TO THE EXTENT
PERMITTED UNDER SECTION 5.6;
55
(G)
NON-RECOURSE DEBT IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$25,000,000 AT ANY TIME OUTSTANDING; PROVIDED THAT BORROWER SHALL NOT INCUR ANY
NON-RECOURSE DEBT AFTER THE CLOSING DATE WITHOUT ADMINISTRATIVE AGENT'S PRIOR
WRITTEN CONSENT TO THE RELEVANT DOCUMENTATION ESTABLISHING OR EVIDENCING THE
NON-RECOURSE NATURE AND AMOUNT OF SUCH NON-RECOURSE DEBT, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD;
(H)
DEBT OF ANY PERSON THAT BECOMES A SUBSIDIARY AFTER THE CLOSING
DATE; PROVIDED THAT SUCH DEBT EXISTS AT THE TIME SUCH PERSON BECOMES A
SUBSIDIARY AND IS NOT CREATED IN CONTEMPLATION OF OR IN CONNECTION WITH SUCH
PERSON BECOMING A SUBSIDIARY;
(I)
PERMITTED SECURITIES;
(J)
DEBT INCURRED TO FINANCE THE ACQUISITION OF EQUIPMENT, PROVIDED
THAT THE AMOUNT OF SUCH DEBT DOES NOT EXCEED THE PURCHASE PRICE OF SUCH
EQUIPMENT; AND
(K)
OTHER UNSECURED DEBT IN AN AGGREGATE PRINCIPAL AMOUNT NOT
EXCEEDING $3,000,000 AT ANY TIME OUTSTANDING;
(L)
ANY CONTINGENT OBLIGATION PERMITTED BY SECTION 5.3; AND
(M)
DEBT INCURRED UNDER BONDS.
SECTION 5.2
LIENS.
Borrower will not, and will not permit any other Credit Party to, directly or
indirectly, create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(A)
LIENS CREATED BY THE SECURITY DOCUMENTS;
(B)
PERMITTED ENCUMBRANCES;
(C)
ANY LIEN ON ANY PROPERTY OF BORROWER OR ANY RESTRICTED SUBSIDIARY
EXISTING ON THE DATE HEREOF AND SET FORTH IN SCHEDULE 5.2; PROVIDED THAT (I)
SUCH LIEN SHALL NOT APPLY TO ANY OTHER PROPERTY OF BORROWER OR ANY SUBSIDIARY
AND (II) SUCH LIEN SHALL SECURE ONLY THOSE OBLIGATIONS WHICH IT SECURES ON THE
DATE HEREOF AND EXTENSIONS, RENEWALS OR REPLACEMENTS THEREOF THAT DO NOT
INCREASE THE OUTSTANDING PRINCIPAL AMOUNT THEREOF;
(D)
ANY LIEN