PARTIES IN THE
ORDINARY COURSE OF BUSINESS;
(L)
CUSTOMARY EXTENSIONS OF TRADE CREDIT IN
THE ORDINARY COURSE OF BUSINESS; AND
(M)
INVESTMENTS OTHER THAN THOSE DESCRIBED IN THE
FOREGOING CLAUSES (A) THROUGH (L) IN AN AGGREGATE AMOUNT NOT TO EXCEED
$2,000,000 AT ANY TIME; AND
(N)
BORROWER MAY CONSUMMATE PERMITTED
ACQUISITIONS, INCLUDING THE ESTABLISHMENT AND CAPITALIZATION OF WHOLLY-OWNED
SUBSIDIARIES IN CONNECTION THEREWITH; PROVIDED THAT THE FOLLOWING CONDITIONS ARE
FULLY SATISFIED:
(I)
NO DEFAULT OR EVENT OF DEFAULT
THEN
EXISTS OR WOULD RESULT THEREFROM;
(II)
THE TOTAL CONSIDERATION PAID OR PAYABLE BY
BORROWER FOR PERMITTED ACQUISITIONS (OR RELATED SERIES OF SUCH ACQUISITIONS)
MADE BY BORROWER (INCLUDING, WITHOUT LIMITATION ALL INDEBTEDNESS ASSUMED OR
INCURRED IN CONNECTION THEREWITH AND IN ACCORDANCE WITH SECTION 3.1 HEREOF)
DURING ANY GIVEN TWELVE MONTH PERIOD SHALL NOT EXCEED $10,000,000 INDIVIDUALLY
OR IN THE AGGREGATE; AND
(III)
BORROWER IS ABLE TO DEMONSTRATE A MINIMUM
BORROWING AVAILABILITY OF $5,000,000 AFTER GIVING EFFECT TO ALL REVOLVING CREDIT
ADVANCES TO BE MADE IN CONNECTION WITH SUCH PERMITTED ACQUISITION BUT EXCLUDING
ANY INVENTORY OR ACCOUNTS BEING ACQUIRED IN CONNECTION THEREWITH.
3.4
CONTINGENT OBLIGATIONS.
THE CREDIT PARTIES
SHALL NOT AND SHALL NOT CAUSE OR PERMIT THEIR SUBSIDIARIES TO DIRECTLY OR
INDIRECTLY CREATE OR BECOME OR BE LIABLE WITH RESPECT TO ANY CONTINGENT
OBLIGATION EXCEPT:
(A)
LETTER OF CREDIT OBLIGATIONS;
(B)
THOSE RESULTING FROM ENDORSEMENT OF
NEGOTIABLE INSTRUMENTS FOR COLLECTION IN THE ORDINARY COURSE OF BUSINESS;
(C)
THOSE EXISTING ON THE RESTATEMENT EFFECTIVE
DATE AND DESCRIBED IN SCHEDULE 3.4;
33
(D)
THOSE ARISING UNDER INDEMNITY AGREEMENTS TO
TITLE INSURERS TO CAUSE SUCH TITLE INSURERS TO ISSUE TO AGENT MORTGAGEE TITLE
INSURANCE POLICIES;
(E)
THOSE ARISING WITH RESPECT TO CUSTOMARY
INDEMNIFICATION OBLIGATIONS INCURRED IN CONNECTION WITH ASSET DISPOSITIONS OR
PERMITTED ACQUISITIONS TO THE EXTENT OTHERWISE PERMITTED HEREUNDER;
(F)
THOSE INCURRED IN THE ORDINARY COURSE OF
BUSINESS WITH RESPECT TO SURETY AND APPEAL BONDS, PERFORMANCE AND
RETURN-OF-MONEY BONDS AND OTHER SIMILAR OBLIGATIONS NOT EXCEEDING AT ANY TIME
OUTSTANDING $1,000,000 IN AGGREGATE LIABILITY;
(G)
THOSE INCURRED WITH RESPECT TO INDEBTEDNESS
PERMITTED BY SECTION 3.1 PROVIDED THAT ANY SUCH CONTINGENT OBLIGATION IS
SUBORDINATED TO THE OBLIGATIONS TO THE SAME EXTENT AS THE INDEBTEDNESS TO WHICH
IT RELATES IS SUBORDINATED TO THE OBLIGATIONS;
(H)
CURRENCY OR INTEREST RATE SWAP AGREEMENTS OR
OTHER SIMILAR ARRANGEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS, SO
LONG AS (I) SUCH SWAP IS NOT SPECULATIVE IN NATURE, (II) IS RELATED TO INCOME
RELATED TO FOREIGN CURRENCY OR INTEREST RATE EXPOSURE OF BORROWER OR ANY
SUBSIDIARY OR OTHERWISE RELATED TO PURCHASES PERMITTED HEREUNDER FROM FOREIGN
SUPPLIERS, OR (III) IS ENTERED INTO TO PROTECT BORROWER OR ANY OF ITS
SUBSIDIARIES AGAINST FLUCTUATIONS IN THE PRICES OF MATERIALS USED IN THEIR
BUSINESSES;
(I)
ANY OTHER CONTINGENT OBLIGATION NOT
EXPRESSLY PERMITTED BY CLAUSES (A) THROUGH (H) ABOVE, SO LONG AS ANY SUCH OTHER
CONTINGENT OBLIGATIONS, IN THE AGGREGATE AT ANY TIME OUTSTANDING, DO NOT EXCEED
$2,000,000; AND
(J)
CONTINGENT OBLIGATIONS OF BORROWER WITH
RESPECT TO OBLIGATIONS OF ANY DOMESTIC SUBSIDIARY AND CONTINGENT OBLIGATIONS OF
ANY DOMESTIC