ANY
DOMESTIC SUBSIDIARY FOR THE BENEFIT OF ANY FOREIGN SUBSIDIARY IN SUCH FISCAL
YEAR PURSUANT TO SECTIONS 3.4(G) AND (H) WHICH REMAIN OUTSTANDING AT SUCH TIME
DOES NOT EXCEED THE FOREIGN INVESTMENT BASKET FOR SUCH FISCAL YEAR AND (B) NO
EVENT OF DEFAULT EXISTS AT THE TIME OF THE MAKING OF ANY SUCH INTERCOMPANY LOAN
OR WOULD RESULT THEREFROM;
(C)
INDEBTEDNESS OF BORROWER AND ITS SUBSIDIARIES OUTSTANDING ON THE
RESTATEMENT DATE AND LISTED ON SCHEDULE 3.1(C) HERETO AND ANY INDEBTEDNESS
RESULTING FROM THE REFINANCING OF ANY SUCH INDEBTEDNESS; PROVIDED, HOWEVER, THAT
(I) THE PRINCIPAL AMOUNT OF ANY SUCH REFINANCING INDEBTEDNESS (AS DETERMINED AS
OF THE DATE OF THE INCURRENCE OF SUCH REFINANCING INDEBTEDNESS IN ACCORDANCE
WITH GAAP) DOES NOT EXCEED THE PRINCIPAL AMOUNT OF THE INDEBTEDNESS REFINANCED
THEREBY ON SUCH DATE PLUS THE AMOUNT OF (A) ANY CONTRACTUALLY STATED CALL AND/OR
REDEMPTION PREMIUM, IF ANY, AND (B) ANY TRANSACTION FEES, IN EACH CASE, PAID IN
CONNECTION WITH THE REFINANCING OF SUCH OUTSTANDING INDEBTEDNESS, (II) THE
WEIGHTED AVERAGE LIFE TO MATURITY OF SUCH INDEBTEDNESS IS NOT DECREASED,
(III) THE OBLIGOR(S) WITH RESPECT TO SUCH REFINANCING INDEBTEDNESS ARE THE SAME
PERSONS WHICH ARE OBLIGORS WITH RESPECT TO THE INDEBTEDNESS REFINANCED THEREBY,
AND (IV) IN THE CASE OF ANY SUCH REFINANCING INDEBTEDNESS, (A) THE COVENANTS,
DEFAULTS AND SIMILAR PROVISIONS APPLICABLE TO SUCH REFINANCING INDEBTEDNESS OR
OBLIGATIONS ARE NO MORE RESTRICTIVE IN ANY MATERIAL RESPECT THAN THE PROVISIONS
CONTAINED IN THIS AGREEMENT AND DO NOT CONFLICT WITH, OR CAUSE A BREACH OF, ANY
PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND (B) SUCH REFINANCING
INDEBTEDNESS IS OTHERWISE UPON TERMS AND SUBJECT TO DEFINITIVE DOCUMENTATION
WHICH IS CUSTOMARY FOR INDEBTEDNESS OF THIS TYPE INCURRED BY A SIMILARLY
SITUATED BORROWER;
(D)
INDEBTEDNESS OF BORROWER OR ANY OF ITS SUBSIDIARIES UNDER
(I) INTEREST RATE AGREEMENTS ENTERED INTO TO PROTECT BORROWER OR ANY OF ITS
SUBSIDIARIES AGAINST FLUCTUATIONS IN INTEREST RATES IN RESPECT OF INDEBTEDNESS
OTHERWISE PERMITTED UNDER THIS AGREEMENT OR (II) OTHER HEDGING AGREEMENTS
PROVIDING PROTECTION AGAINST FLUCTUATIONS IN CURRENCY VALUES OR IN THE PRICE OF
COMMODITIES AND RAW MATERIALS IN CONNECTION WITH BORROWER'S OR ANY OF ITS
SUBSIDIARIES' OPERATIONS SO LONG AS SUCH OTHER HEDGING AGREEMENTS ARE USED FOR
BUSINESS PURPOSES AND NOT FOR SPECULATIVE PURPOSES;
(E)
INDEBTEDNESS OF BORROWER OR ANY OF ITS SUBSIDIARIES CONSISTING OF
(I) CAPITAL LEASE OBLIGATIONS, (II) DEBT INCURRED TO FINANCE THE COST (INCLUDING
THE COST OF CONSTRUCTION) OF ACQUISITION OF PROPERTY AND/OR (III) INDEBTEDNESS
OF A SUBSIDIARY OF BORROWER OUTSTANDING ON THE DATE SUCH PERSON BECOMES A
SUBSIDIARY PURSUANT TO A PERMITTED ACQUISITION
27
(OTHER THAN INDEBTEDNESS ISSUED AS CONSIDERATION IN, OR TO PROVIDE ANY PORTION
OF THE FUNDS UTILIZED TO CONSUMMATE, SUCH PERMITTED ACQUISITION) (COLLECTIVELY,
"PURCHASE MONEY INDEBTEDNESS"), PROVIDED THE AGGREGATE PRINCIPAL AMOUNT OF ALL
INDEBTEDNESS DESCRIBED IN CLAUSES (I), (II) AND (III) SHALL NOT EXCEED
$10,000,000 AT ANY TIME OUTSTANDING (THE "PURCHASE MONEY BASKET");
(F)
CONTINGENT OBLIGATIONS PERMITTED UNDER SECTION 3.4;
(G)
UNSECURED, SUBORDINATED DEBT OF HOLDINGS EVIDENCED BY PROMISSORY
NOTES IN FORM AND SUBSTANCE