AND CONDITIONS
OF THE INVESTMENT BEING EXTENDED, RENEWED OR RESTATED;
(H)
INVESTMENTS IN FOREIGN SUBSIDIARIES IN AN
AGGREGATE AMOUNT NOT TO EXCEED $1,000,000 AT ANY ONE TIME OUTSTANDING;
(I)
IF IN THE REASONABLE JUDGMENT OF THE
BORROWER OR ANY OF ITS SUBSIDIARIES, ANY CUSTOMER IS DEEMED TO BE IN A
REORGANIZATION OR UNABLE TO MAKE A TIMELY CASH PAYMENT ON INDEBTEDNESS OF SUCH
CUSTOMER OWING TO IT, EACH OF THE BORROWER AND ITS SUBSIDIARIES MAY INVEST IN
SECURITIES ISSUED BY SUCH CUSTOMER OR ANY AFFILIATE THEREOF IN LIEU OF CASH
PAYMENTS; PROVIDED, THAT THE BORROWER OR SUCH SUBSIDIARY, AS THE CASE MAY BE,
HAS PAID NO NEW CONSIDERATION (OTHER THAN THE FORGIVENESS OF INDEBTEDNESS OR
OTHER OBLIGATIONS) THEREFOR; AND
(J)
OTHER INVESTMENTS IN AN AGGREGATE AMOUNT
NOT TO EXCEED $5,000,000.
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 CLOSING DATE AND
DESCRIBED IN SCHEDULE 3.4;
(D)
THOSE ARISING UNDER INDEMNITY AGREEMENTS TO
TITLE INSURERS TO CAUSE SUCH TITLE INSURERS TO ISSUE TO AGENT MORTGAGEE TITLE
INSURANCE POLICIES;
(E)
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;
(F)
THOSE INCURRED WITH RESPECT TO
INDEBTEDNESS PERMITTED BY SECTION 3.1 (OTHER THAN SECTION 3.1(H)), 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,AND PROVIDED, FURTHER,THAT IF ANY PERSON GUARANTEES PAYMENT OR
PERFORMANCE OF ANY OR ALL OF THE OBLIGATIONS UNDER ANY OR ALL OF THE SENIOR
SECURED NOTE DOCUMENTS OR SENIOR SUBORDINATED NOTE DOCUMENTS AND SUCH PERSON IS
NOT A GUARANTOR OR DIRECT OBLIGOR WITH RESPECT TO THE OBLIGATIONS, THE CREDIT
PARTIES SHALL CAUSE SUCH PERSON TO GUARANTEE PAYMENT OF THE OBLIGATIONS AND
GRANT TO AGENT A LIEN ON SUCH PERSON'S ASSETS IN A MANNER CONSISTENT WITH THE
TERMS OF THE LOAN DOCUMENTS;
29
(G)
CONTINGENT OBLIGATIONS OF BORROWER TO EXTENT
DESCRIBED IN CLAUSE (1) IN THE PARENTHETICAL IN SECTION 3.1(H);
(H)
CONTINGENT OBLIGATIONS OF THE BORROWER IN
RESPECT OF OBLIGATIONS OF ONE OR MORE DOMESTIC SUBSIDIARIES OF THE BORROWER; AND
(I)
OTHER CONTINGENT OBLIGATIONS NOT
PERMITTED BY CLAUSES (A) THROUGH (G) ABOVE AS LONG AS SUCH OTHER CONTINGENT
OBLIGATIONS, IN THE AGGREGATE AT ANY TIME OUTSTANDING, DO NOT EXCEED $1,000,000.
3.5
RESTRICTED PAYMENTS.
THE CREDIT PARTIES
SHALL NOT AND SHALL NOT CAUSE OR PERMIT THEIR SUBSIDIARIES TO DIRECTLY OR
INDIRECTLY DECLARE, ORDER, PAY, MAKE OR SET APART ANY SUM FOR ANY RESTRICTED
PAYMENT, EXCEPT THAT:
(A)
SUBSIDIARIES OF BORROWER MAY MAKE
RESTRICTED PAYMENTS TO BORROWER OR ANY DOMESTIC SUBSIDIARY;
(B)
BORROWER MAY MAKE REGULARLY SCHEDULED CASH
INTEREST