RECEIVED IN CONNECTION WITH THE BANKRUPTCY OR
REORGANIZATION OF SUPPLIERS OR CUSTOMERS AND IN SETTLEMENT OF DELINQUENT
OBLIGATIONS OF, AND OTHER DISPUTES WITH, CUSTOMERS ARISING IN THE ORDINARY
COURSE OF BUSINESS OR UPON FORECLOSURE WITH RESPECT TO ANY SECURED INVESTMENT OR
OTHER TRANSFER OF TITLE WITH RESPECT TO ANY SECURED INVESTMENT;
(I)
INVESTMENTS CONSISTING OF EXTENSIONS OF CREDIT IN THE NATURE OF
ACCOUNTS RECEIVABLE OR NOTES RECEIVABLE ARISING FROM THE GRANT OF TRADE CREDIT
IN THE ORDINARY COURSE OF BUSINESS, AND INVESTMENTS RECEIVED IN SATISFACTION OR
PARTIAL SATISFACTION THEREOF FROM FINANCIALLY TROUBLED ACCOUNT DEBTORS AND OTHER
CREDITS TO SUPPLIERS IN THE ORDINARY COURSE OF BUSINESS;
(J)
INVESTMENTS IN THE ORDINARY COURSE OF BUSINESS CONSISTING OF
ENDORSEMENTS FOR COLLECTION OR DEPOSIT AND CUSTOMARY TRADE ARRANGEMENTS WITH
CUSTOMERS CONSISTENT WITH PAST PRACTICES;
(K)
ADVANCES OF PAYROLL PAYMENTS TO EMPLOYEES IN THE ORDINARY COURSE OF
BUSINESS;
(L)
GUARANTEE OBLIGATIONS OF ANY LOAN PARTY OF LEASES (OTHER THAN
CAPITAL LEASES) OR OF OTHER OBLIGATIONS THAT DO NOT CONSTITUTE INDEBTEDNESS, IN
EACH CASE ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS; AND
(M)
INVESTMENTS HELD BY A PERSON ACQUIRED (INCLUDING BY WAY OF MERGER OR
CONSOLIDATION) AFTER THE CLOSING DATE OTHERWISE IN ACCORDANCE WITH THIS
SUBSECTION 3.3 TO THE EXTENT THAT SUCH INVESTMENTS WERE NOT MADE IN
CONTEMPLATION OF OR IN CONNECTION WITH SUCH ACQUISITION, MERGER OR CONSOLIDATION
AND WERE IN EXISTENCE ON THE DATE OF SUCH ACQUISITION, MERGER OR CONSOLIDATION.
31
3.4
Contingent Obligations.
The Loan Parties will not, and will not permit
any of their respective Subsidiaries to, directly or indirectly, create or
become or be liable with respect to any Contingent Obligation except those:
(A)
RESULTING FROM ENDORSEMENT OF NEGOTIABLE INSTRUMENTS FOR COLLECTION
IN THE ORDINARY COURSE OF BUSINESS;
(B)
ARISING UNDER INDEMNITY AGREEMENTS TO TITLE INSURERS IN CONNECTION
WITH MORTGAGEE TITLE INSURANCE POLICIES IN FAVOR OF ADMINISTRATIVE AGENT FOR THE
BENEFIT OF ITSELF AND THE OTHER LENDERS;
(C)
ARISING WITH RESPECT TO CUSTOMARY INDEMNIFICATION OBLIGATIONS
INCURRED IN CONNECTION WITH PERMITTED ACQUISITIONS AND PERMITTED ASSET
DISPOSITIONS (PROVIDED THAT SUCH OBLIGATIONS SHALL IN NO EVENT EXCEED THE AMOUNT
OF PROCEEDS RECEIVED IN CONNECTION THEREWITH);
(D)
ARISING IN THE ORDINARY COURSE OF BUSINESS WITH RESPECT TO
CUSTOMARY INDEMNIFICATION OBLIGATIONS INCURRED IN CONNECTION WITH LIABILITY
INSURANCE COVERAGE;
(E)
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 $2,000,000 IN AGGREGATE
LIABILITY;
(F)
INCURRED AS A GUARANTY OF INDEBTEDNESS PERMITTED BY SUBSECTION 3.1
(PROVIDED THAT SUCH GUARANTY OBLIGATION SHALL IN NO EVENT EXCEED THE AMOUNT OF
SUCH INDEBTEDNESS PLUS OTHER RELATED COSTS AND EXPENSES OF COLLECTION AS SET
FORTH IN SUCH GUARANTY);
(G)
CONSTITUTING INVESTMENTS PERMITTED PURSUANT TO SECTION 3.3; AND
(H)
CONTINGENT OBLIGATIONS ARISING UNDER THE LOAN DOCUMENTS AND UNDER
HEDGE AGREEMENTS.
3.5
Restricted Junior Payments.
The Loan Parties will not, and will not
permit their respective Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior