SIMILAR OBLIGATIONS INCURRED IN
CONNECTION WITH ANY JUDGMENT NOT CONSTITUTING AN EVENT OF DEFAULT; (X) DEBT OF
FOREIGN SUBSIDIARIES ARISING UNDER ANY FOREIGN ASSET BASED FINANCING, IN AN
AGGREGATE PRINCIPAL AMOUNT FOR ALL SUCH FOREIGN ASSET BASED FINANCINGS NOT TO
EXCEED THE GREATER OF $150,000,000 AND €125,000,000 AT ANY TIME OUTSTANDING (FOR
PURPOSES OF THIS CLAUSE (X), THE "PRINCIPAL AMOUNT" OF A FOREIGN ASSET BASED
FINANCING THAT IS NOT INDEBTEDNESS FOR BORROWED MONEY SHALL MEAN THE AMOUNT
INVESTED BY INVESTORS THAT ARE NOT AFFILIATES OF THE BORROWER AND PAID TO THE
BORROWER OR ITS SUBSIDIARIES, AS REDUCED BY THE AGGREGATE AMOUNTS RECEIVED BY
SUCH INVESTORS FROM THE PAYMENT OF RECEIVABLES AND APPLIED TO REDUCE SUCH
INVESTED AMOUNTS); AND (XI) DEBT NOT OTHERWISE PERMITTED HEREUNDER IN AN
AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF $5,000,000.
(C)
GUARANTEES AND OTHER LIABILITIES.
CONTRACT, CREATE, INCUR, ASSUME
OR PERMIT TO EXIST, OR PERMIT ANY SUBSIDIARY TO CONTRACT, CREATE, ASSUME OR
PERMIT TO EXIST, ANY GUARANTEE OBLIGATIONS, EXCEPT (I) FOR ANY GUARANTY OF DEBT
OR OTHER OBLIGATIONS OF THE BORROWER OR ANY GUARANTOR IF THE BORROWER OR SUCH
GUARANTOR COULD HAVE INCURRED SUCH DEBT OR OBLIGATIONS UNDER THIS AGREEMENT,
(II) BY ENDORSEMENT OF NEGOTIABLE INSTRUMENTS FOR DEPOSIT OR COLLECTION IN THE
ORDINARY COURSE OF BUSINESS, (III) GUARANTEE OBLIGATIONS CONSTITUTING
INVESTMENTS OF THE BORROWER AND ITS SUBSIDIARIES PERMITTED HEREUNDER,
(IV) (A) GUARANTEE OBLIGATIONS UNDER THE LETTER AGREEMENT DATED FEBRUARY 25,
2009 BETWEEN THE BORROWER AND MEDIOFACTORING SPA IN EFFECT AS OF THE PETITION
DATE (AS SUCH AGREEMENT MAY HAVE BEEN AND MAY HEREAFTER BE AMENDED, RESTATED,
SUPPLEMENTED OR OTHERWISE MODIFIED, SO LONG AS THE TERMS THEREOF ARE NOT LESS
FAVORABLE TO THE BORROWER AND THE LENDERS THAN AS IN EFFECT ON THE PETITION DATE
(EXCEPT THAT THE PERMITTED MODIFICATIONS OF THE PRIMARY OBLIGATIONS (AS DEFINED
IN THE DEFINITION OF "GUARANTEED OBLIGATIONS") GUARANTEED UNDER SUCH LETTER
AGREEMENT ARE PERMITTED), (B) TO THE EXTENT CONSTITUTING GUARANTEE OBLIGATIONS,
LETTERS OF CREDIT ISSUED TO SUPPORT FOREIGN SUBSIDIARIES AND OTHER NON-LOAN
PARTIES SO LONG AS SUCH GUARANTEE OBLIGATIONS AND ALL OTHER INVESTMENTS IN
71
FOREIGN SUBSIDIARIES AND OTHER NON-LOAN PARTIES UNDER SECTION 5.02(G)(XII) DO
NOT EXCEED $60,000,000 IN THE AGGREGATE AT ANY TIME OUTSTANDING AND (C) ANY
OTHER SUPPORT ARRANGEMENTS SUPPORTING DEBT PERMITTED UNDER
SECTION 5.02(B)(X) THAT ARE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
REQUIRED LENDERS, AND (V) ANY GUARANTY OF DEBT OR OTHER OBLIGATIONS OF ANY
NON-LOAN PARTY BY ANOTHER NON-LOAN PARTY.
(D)
CHAPTER 11 CLAIMS.
IN RESPECT OF ANY LOAN PARTY, INCUR, CREATE,
ASSUME, SUFFER TO EXIST OR PERMIT ANY OTHER SUPERPRIORITY CLAIM THAT IS PARI
PASSU WITH OR SENIOR TO THE CLAIMS OF THE AGENTS AND THE SECURED PARTIES AGAINST
THE BORROWER AND THE GUARANTORS EXCEPT WITH RESPECT TO THE CARVE-OUT AND LIENS
DESCRIBED IN CLAUSES (A) THROUGH (D) OF SECTION 9.08(A)(II).
(E)
DIVIDENDS; CAPITAL STOCK.
DECLARE OR PAY, DIRECTLY OR INDIRECTLY,
ANY DIVIDENDS OR MAKE ANY OTHER DISTRIBUTION, REDEMPTION, REPURCHASE OR PAYMENT,
WHETHER IN CASH, PROPERTY, SECURITIES OR A COMBINATION THEREOF, WITH RESPECT TO
(WHETHER BY