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
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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:
(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 ONLY TO THE
EXTENT THEN OUTSTANDING);
(II)
INDEBTEDNESS OF THE BORROWER OR HOLDINGS (WHICH MAY BE GUARANTEED
BY ONE OR MORE CREDIT PARTIES,