EXISTING ON ANY PROPERTY (TOGETHER WITH RECEIVABLES,
INTANGIBLES AND PROCEEDS THEREOF) PRIOR TO THE ACQUISITION THEREOF BY BORROWER
OR ANY SUBSIDIARY OR EXISTING ON ANY PROPERTY OF ANY PERSON THAT BECOMES A
SUBSIDIARY AFTER THE DATE HEREOF PRIOR TO THE TIME SUCH PERSON BECOMES A
SUBSIDIARY; PROVIDED THAT (I) SUCH LIEN IS NOT CREATED IN CONTEMPLATION OF OR IN
CONNECTION WITH SUCH ACQUISITION OR SUCH PERSON BECOMING A SUBSIDIARY, AS THE
CASE MAY BE, (II) SUCH LIEN SHALL NOT APPLY TO ANY OTHER PROPERTY OF BORROWER OR
ANY SUBSIDIARY AND (III) SUCH LIEN SHALL SECURE ONLY THOSE OBLIGATIONS WHICH IT
SECURES ON THE DATE OF SUCH ACQUISITION OR THE DATE SUCH PERSON BECOMES A
SUBSIDIARY, AS THE CASE MAY BE AND EXTENSIONS, RENEWALS OR REPLACEMENTS THEREOF
THAT DO NOT INCREASE THE OUTSTANDING PRINCIPAL AMOUNT THEREOF;
56
(E)
LIENS ON FIXED OR CAPITAL ASSETS (TOGETHER WITH RECEIVABLES,
INTANGIBLES AND PROCEEDS THEREOF) ACQUIRED, CONSTRUCTED OR IMPROVED BY BORROWER
OR ANY SUBSIDIARY; PROVIDED THAT (I) SUCH SECURITY INTERESTS SECURE DEBT
PERMITTED BY SECTION 5.1(E), (II) SUCH SECURITY INTERESTS AND THE DEBT SECURED
THEREBY ARE INCURRED PRIOR TO OR WITHIN 180 DAYS AFTER SUCH ACQUISITION OR THE
COMPLETION OF SUCH CONSTRUCTION OR IMPROVEMENT, (III) THE DEBT SECURED THEREBY
DOES NOT EXCEED THE COST OF ACQUIRING, CONSTRUCTING OR IMPROVING SUCH FIXED OR
CAPITAL ASSETS AND (IV) SUCH SECURITY INTERESTS SHALL NOT APPLY TO ANY OTHER
PROPERTY OF BORROWER OR ANY SUBSIDIARY;
(F)
LIENS SECURING OBLIGATIONS AND LIABILITIES OF BORROWER AND ANY
RESTRICTED SUBSIDIARY UNDER SWAP AGREEMENTS TO THE EXTENT PERMITTED HEREUNDER;
AND
(G)
LIENS GRANTED TO SECURE NON-RECOURSE DEBT PERMITTED UNDER SECTION
5.1(G).
SECTION 5.3
CONTINGENT OBLIGATIONS.
Borrower will not, and will not permit any other Credit Party 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 THE
FINANCING DOCUMENTS AND LETTER OF CREDIT LIABILITIES;
(B)
CONTINGENT OBLIGATIONS RESULTING FROM ENDORSEMENTS FOR COLLECTION
OR DEPOSIT IN THE ORDINARY COURSE OF BUSINESS;
(C)
CONTINGENT OBLIGATIONS EXISTING OR ARISING UNDER ANY SWAP
CONTRACT, PROVIDED THAT (I) SO LONG AS THERE EXISTS NO EVENT OF DEFAULT BOTH
IMMEDIATELY BEFORE AND IMMEDIATELY AFTER GIVING EFFECT TO ANY SUCH TRANSACTION
AND (II) SUCH OBLIGATIONS ARE (OR WERE) ENTERED INTO BY BORROWER OR ANOTHER
CREDIT PARTY 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 AND CONTINGENT OBLIGATIONS WITH RESPECT TO DEBT
PERMITTED UNDER SECTION 5.1;
(E)
CONTINGENT OBLIGATIONS INCURRED IN THE ORDINARY COURSE OF BUSINESS
WITH RESPECT TO BONDS;
(F)
CONTINGENT OBLIGATIONS ARISING UNDER INDEMNITY AGREEMENTS IN
CONNECTION WITH 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;
(H)
CONTINGENT OBLIGATIONS IN FAVOR OF