PROVIDED, THAT (X) ALL SUCH CAPITALIZED LEASE
OBLIGATIONS ARE PERMITTED UNDER SECTION 9.3 AND (Y) THE SUM, WITHOUT
DUPLICATION, OF (I) THE AGGREGATE OUTSTANDING CAPITALIZED LEASE OBLIGATIONS PLUS
(II) THE AGGREGATE OUTSTANDING INDEBTEDNESS UNDER OPERATING FINANCING LEASES
PLUS (III) THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF SUCH INDEBTEDNESS
SECURED BY LIENS PERMITTED BY SECTION 8.1(B) AT ANY TIME SHALL NOT EXCEED
$20,000,000 AND ANY EXTENSION, RENEWAL OR REPLACEMENT THEREOF PROVIDED SUCH
INDEBTEDNESS IS NOT INCREASED AND IS NOT SECURED BY ANY ADDITIONAL PROPERTY OR
ASSETS;
(I)
INDEBTEDNESS WITH RESPECT TO HEDGING AGREEMENTS ENTERED INTO IN
THE ORDINARY COURSE OF BUSINESS IN ORDER TO MANAGE EXISTING OR ANTICIPATED
INTEREST RATE, EXCHANGE RATE, COMMODITY OR OTHER REVENUE OR EXPENSE RISK, AND
NOT FOR SPECULATIVE PURPOSES, IN ANY CASE;
(J)
INDEBTEDNESS CONSISTING OF GUARANTEE OBLIGATIONS OF ANY
SUBSIDIARY OF BORROWER OF THE OBLIGATIONS UNDER ANY LOAN DOCUMENT OR CONSISTING
OF A GUARANTEE OF OBLIGATIONS OF A RESTRICTED SUBSIDIARY UNDER ANY LEASE OR
OTHER AGREEMENT ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS NOT CONSTITUTING
INDEBTEDNESS AND FOR WHICH THE LIABILITY WITH RESPECT THERETO IS NOT REQUIRED TO
BE REFLECTED ON A BALANCE SHEET PREPARED IN ACCORDANCE WITH GAAP;
(K)
INDEBTEDNESS CONSISTING OF GUARANTEE OBLIGATIONS INCURRED TO
SATISFY BONDING OBLIGATIONS NOT IN EXCESS OF $15,000,000 AT ANY ONE TIME WHICH
ARISE IN THE ORDINARY COURSE OF BUSINESS; AND
(L)
INDEBTEDNESS INCURRED PURSUANT TO THE SENIOR SECURED NOTES
INDENTURE NOT TO EXCEED $455,400,000 OUTSTANDING ON THE CLOSING DATE AND
EVIDENCED BY THE SENIOR SECURED NOTES AND ADDITIONAL SENIOR SECURED NOTES ISSUED
AFTER THE CLOSING DATE AND EVIDENCED BY THE SENIOR SECURED NOTES INDENTURE, BUT
ONLY TO THE EXTENT THAT THE AGGREGATE PRINCIPAL AMOUNT OF SUCH ADDITIONAL SENIOR
SECURED NOTES IS NOT GREATER THAN (I) $25,000,000 MINUS (II) THE AMOUNT OF
ADDITIONAL TERM B LOANS INCURRED PURSUANT TO SECTION 2.4; AND GUARANTEES THEREOF
BY ANY SUBSIDIARY GUARANTOR.
For purposes of this Section 8.2, any Indebtedness of an entity outstanding when
it becomes a Subsidiary shall be deemed to have been incurred at that time.
8.3
FUNDAMENTAL CHANGES.
Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to,
directly or indirectly, (i) consummate any Acquisition or (ii) enter into any
merger, consolidation
79
or amalgamation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution) or convey, sell, assign, lease, transfer or
otherwise dispose of (or agree to do any of the foregoing at any future time)
all or substantially all of its property, business or assets; provided, however,
that so long as prior to or simultaneously with such transactions, Borrower has
complied with, and has caused its Subsidiaries to comply with, the provisions of
Section 7.11:
(A)
ANY SUBSIDIARY OF BORROWER MAY BE MERGED OR CONSOLIDATED WITH OR
INTO BORROWER SO LONG AS BORROWER IS THE SURVIVING CORPORATION OR WITH OR INTO
ANY ONE OR MORE WHOLLY-OWNED SUBSIDIARIES OF BORROWER (OTHER THAN AN
UNRESTRICTED SUBSIDIARY, AIRSTAR CORPORATION, HUNTSMAN HEADQUARTERS CORPORATION
OR IRIC); PROVIDED, HOWEVER, THAT (I) THE WHOLLY-OWNED SUBSIDIARY OR
SUBSIDIARIES