(I)
CUSTOMARY RIGHTS OF SET-OFF, REVOCATION, REFUND OR CHARGEBACK
UNDER DEPOSIT AGREEMENTS OR UNDER THE UNIFORM COMMERCIAL CODE OF BANKS OR OTHER
FINANCIAL INSTITUTIONS WHERE ANY CREDIT PARTY MAINTAINS DEPOSITS (OTHER THAN
DEPOSITS INTENDED AS CASH COLLATERAL) IN THE ORDINARY COURSE OF BUSINESS;
(J)
ANY INTEREST OR TITLE OF A LICENSOR, SUBLICENSOR, LESSOR OR
SUBLESSOR IN THE PROPERTY COVERED BY ANY LICENSE OR LEASE AGREEMENT OF ANY
CREDIT PARTY NOT PROHIBITED HEREUNDER;
(K)
LICENSES, SUBLICENSES, LEASES OR SUBLEASES GRANTED BY ANY CREDIT
PARTY TO ANY THIRD PARTIES IN THE ORDINARY COURSE OF BUSINESS;
(L)
LIENS ON INSURANCE POLICIES AND THE PROCEEDS THEREOF SECURING
DEBT DESCRIBED IN SECTION 5.1(M);
(M)
LIENS IN FAVOR OF COLLECTING BANKS ARISING UNDER SECTION 4-210 OF
THE UNIFORM COMMERCIAL CODE AND OTHER BANKERS LIENS ARISING BY OPERATION OF LAW;
AND
(N)
ZONING, BUILDING CODES AND OTHER LAND USE LAWS REGULATING THE USE
OR OCCUPANCY OF REAL PROPERTY OR THE ACTIVITIES CONDUCTED THEREON WHICH ARE
IMPOSED BY ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER SUCH REAL
PROPERTY WHICH ARE NOT VIOLATED IN ANY MATERIAL RESPECT BY THE CURRENT USE OR
OCCUPANCY OR THE OPERATION OF THE BUSINESS ON SUCH REAL PROPERTY.
SECTION 5.3
CONTINGENT OBLIGATIONS.
No Borrower will, or will permit any Subsidiary to, directly or indirectly,
create, assume, incur or suffer to exist any Contingent Obligations, except for:
(A)
CONTINGENT OBLIGATIONS ARISING IN RESPECT OF THE DEBT UNDER
(I) THE FINANCING DOCUMENTS, (II) LETTER OF CREDIT LIABILITIES AND (III) THE
SUBORDINATED DEBT DOCUMENTS;
(B)
CONTINGENT OBLIGATIONS RESULTING FROM ENDORSEMENTS FOR COLLECTION
OR DEPOSIT IN THE ORDINARY COURSE OF BUSINESS;
(C)
SO LONG AS THERE EXISTS NO EVENT OF DEFAULT BOTH IMMEDIATELY
BEFORE AND IMMEDIATELY AFTER GIVING EFFECT TO ANY SUCH TRANSACTION, CONTINGENT
OBLIGATIONS EXISTING OR ARISING UNDER ANY SWAP CONTRACT, PROVIDED THAT SUCH
OBLIGATIONS ARE (OR WERE) ENTERED INTO BY A BORROWER OR A SUBSIDIARY IN THE
ORDINARY COURSE OF BUSINESS FOR THE PURPOSE OF DIRECTLY MITIGATING RISKS
ASSOCIATED WITH LIABILITIES, COMMITMENTS, INVESTMENTS, ASSETS, OR PROPERTY HELD
OR REASONABLY ANTICIPATED BY SUCH PERSON AND NOT FOR PURPOSES OF SPECULATION;
(D)
CONTINGENT OBLIGATIONS OUTSTANDING ON THE DATE OF THIS AGREEMENT
AND SET FORTH ON SCHEDULE 5.3;
72
(E)
CONTINGENT OBLIGATIONS INCURRED IN THE ORDINARY COURSE OF BUSINESS
WITH RESPECT TO SURETY AND APPEAL BONDS, PERFORMANCE BONDS AND OTHER SIMILAR
OBLIGATIONS NOT TO EXCEED $500,000 IN THE AGGREGATE AT ANY TIME OUTSTANDING;
(F)
CONTINGENT OBLIGATIONS ARISING UNDER INDEMNITY AGREEMENTS WITH
TITLE INSURERS TO CAUSE SUCH TITLE INSURERS TO ISSUE TO ADMINISTRATIVE AGENT
MORTGAGEE TITLE INSURANCE POLICIES;
(G)
CONTINGENT OBLIGATIONS ARISING WITH RESPECT TO CUSTOMARY
INDEMNIFICATION OBLIGATIONS IN FAVOR OF PURCHASERS IN CONNECTION WITH
DISPOSITIONS PERMITTED UNDER SECTION 5.7 OR IN FAVOR OF SELLERS IN CONNECTION
WITH INVESTMENTS AND ACQUISITIONS PERMITTED UNDER SECTION 5.8;
(H)
CONTINGENT OBLIGATIONS ARISING WITH RESPECT TO FLOOR PLAN
OBLIGATIONS, PROVIDED THAT THE MAXIMUM AMOUNT OF SUCH CONTINGENT OBLIGATIONS
SHALL NOT EXCEED AN AGGREGATE OF $5,000,000 AT ANY ONE TIME AND PROVIDED THAT
THE BORROWERS ACCOUNT FOR ALL SUCH FLOOR PLAN OBLIGATIONS AND THE