THE BORROWER OR ANY GUARANTOR
IN RESPECT OF INDEBTEDNESS OTHERWISE PERMITTED HEREUNDER;
(D)
OBLIGATIONS (CONTINGENT OR OTHERWISE) OF THE
BORROWER OR ANY RESTRICTED SUBSIDIARY EXISTING OR ARISING UNDER ANY SWAP
CONTRACT, PROVIDED THAT (I) SUCH OBLIGATIONS ARE (OR WERE) ENTERED INTO BY SUCH
PERSON IN THE ORDINARY COURSE OF BUSINESS FOR THE PURPOSE OF DIRECTLY MITIGATING
RISKS ASSOCIATED WITH LIABILITIES, COMMITMENTS, INVESTMENTS, ASSETS, OR PROPERTY
HELD OR REASONABLY ANTICIPATED BY SUCH PERSON, OR CHANGES IN THE VALUE OF
SECURITIES ISSUED BY SUCH PERSON, AND NOT FOR PURPOSES OF SPECULATION OR TAKING
A "MARKET VIEW;" AND (II) SUCH SWAP
72
CONTRACT DOES NOT CONTAIN ANY PROVISION EXONERATING THE NON-DEFAULTING PARTY
FROM ITS OBLIGATION TO MAKE PAYMENTS ON OUTSTANDING TRANSACTIONS TO THE
DEFAULTING PARTY;
(E)
UNSECURED INDEBTEDNESS INCLUDING PUBLIC
INDEBTEDNESS (BUT EXCLUDING ANY TYPE OF WORKING CAPITAL OR SIMILAR LINE OF
CREDIT); PROVIDED, THAT THERE EXISTS NO DEFAULT BOTH BEFORE AND AFTER GIVING
EFFECT TO SUCH INDEBTEDNESS;
(F)
SECURED INDEBTEDNESS, PROVIDED THAT
(I) SUCH LIENS ARE ON ASSETS OTHER THAN BORROWING BASE ASSETS, (II) THE
AGGREGATE AMOUNT OF INDEBTEDNESS IN RESPECT OF ANY OF THE FOREGOING OUTSTANDING
AT ANY TIME (WHICH SHALL INCLUDE ANY INDEBTEDNESS LISTED ON SCHEDULE 7.03 WHICH
IS SECURED) SHALL NOT EXCEED 10% OF CONSOLIDATED TANGIBLE NET WORTH AND
(III) THERE EXISTS NO DEFAULT BOTH BEFORE AND AFTER GIVING EFFECT TO SUCH
INDEBTEDNESS; AND
(G)
INDEBTEDNESS OF THE BORROWER TO ANY
GUARANTOR AND INDEBTEDNESS OF ANY GUARANTOR OWED TO THE BORROWER OR ANOTHER
GUARANTOR.
Notwithstanding anything in this Section 7.03 to the contrary, in no event shall
the aggregate amount of Indebtedness guarantied by the Borrower and its
Subsidiaries pursuant to Springing Guarantees exceed 50% of Consolidated
Tangible Net Worth.
7.04
FUNDAMENTAL CHANGES. MERGE, DISSOLVE, LIQUIDATE,
CONSOLIDATE WITH OR INTO ANOTHER PERSON, OR DISPOSE OF (WHETHER IN ONE
TRANSACTION OR IN A SERIES OF TRANSACTIONS) ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS (WHETHER NOW OWNED OR HEREAFTER ACQUIRED) TO OR IN FAVOR OF ANY PERSON,
EXCEPT THAT, SO LONG AS NO DEFAULT EXISTS OR WOULD RESULT THEREFROM:
(A)
ANY RESTRICTED SUBSIDIARY MAY MERGE WITH
(I) THE BORROWER, PROVIDED THAT THE BORROWER SHALL BE THE CONTINUING OR
SURVIVING PERSON, (II) ANY ONE OR MORE OTHER RESTRICTED SUBSIDIARIES, PROVIDED
THAT WHEN ANY GUARANTOR IS MERGING WITH ANOTHER RESTRICTED SUBSIDIARY, THE
GUARANTOR SHALL BE THE CONTINUING OR SURVIVING PERSON OR (III) ANY PERSON,
PROVIDED THAT SUCH PERSON FORMED BY OR SURVIVING SUCH CONSOLIDATION OR MERGER
BECOMES A GUARANTOR PURSUANT TO SECTION 6.12 AND IS A RESTRICTED SUBSIDIARY;
(B)
ANY RESTRICTED SUBSIDIARY MAY DISPOSE OF ALL
OR SUBSTANTIALLY ALL OF ITS ASSETS (UPON VOLUNTARY LIQUIDATION OR OTHERWISE) TO
THE BORROWER OR TO ANOTHER RESTRICTED SUBSIDIARY; PROVIDED THAT IF THE
TRANSFEROR IN SUCH A TRANSACTION IS A GUARANTOR, THEN THE TRANSFEREE MUST EITHER
BE THE BORROWER OR A GUARANTOR; AND
(C)
THE BORROWER OR ANY RESTRICTED SUBSIDIARY
MAY MAKE ANY INVESTMENT PERMITTED BY SECTION 7.02(F).
7.05
DISPOSITIONS. MAKE ANY DISPOSITION OR ENTER INTO ANY
AGREEMENT TO MAKE ANY DISPOSITION, EXCEPT:
(A)
DISPOSITIONS OF