EXPOSURE TO FLUCTUATIONS IN COMMODITY
PRICES TO THE EXTENT THE INDEBTEDNESS UNDER SUCH HEDGING AGREEMENTS ARE
PERMITTED UNDER SECTION 9.9 HEREOF;
(I)
LIENS ARISING FROM (I) OPERATING LEASES AND THE
PRECAUTIONARY UCC FINANCING STATEMENT FILINGS IN RESPECT THEREOF AND
(II) EQUIPMENT OR OTHER MATERIALS WHICH ARE NOT OWNED BY ANY BORROWER, GUARANTOR
OR SUBSIDIARY LOCATED ON THE PREMISES OF SUCH BORROWER, GUARANTOR OR SUBSIDIARY
(BUT NOT IN CONNECTION WITH, OR AS PART OF, THE FINANCING THEREOF) FROM TIME TO
TIME IN THE ORDINARY COURSE OF BUSINESS AND CONSISTENT WITH CURRENT PRACTICES OF
SUCH BORROWER OR GUARANTOR AND THE PRECAUTIONARY UCC FINANCING STATEMENT FILINGS
IN RESPECT THEREOF;
85
(J)
LIENS OR RIGHTS OF SETOFF AGAINST CREDIT BALANCES OF
BORROWERS WITH CREDIT CARD ISSUERS OR CREDIT CARD PROCESSORS OR AMOUNTS OWING BY
SUCH CREDIT CARD ISSUERS OR CREDIT CARD PROCESSORS TO BORROWER IN THE ORDINARY
COURSE OF BUSINESS, BUT NOT LIENS ON OR RIGHTS OF SETOFF AGAINST ANY OTHER
PROPERTY OR ASSETS OF BORROWERS, PURSUANT TO THE CREDIT CARD AGREEMENTS (AS IN
EFFECT ON THE DATE HEREOF) TO SECURE THE OBLIGATIONS OF BORROWERS TO THE CREDIT
CARD ISSUERS OR CREDIT CARD PROCESSORS AS A RESULT OF FEES AND CHARGEBACKS;
(K)
STATUTORY OR COMMON LAW LIENS OR RIGHTS OF SETOFF OF
DEPOSITORY BANKS WITH RESPECT TO FUNDS OF ANY BORROWER, GUARANTOR OR SUBSIDIARY
AT SUCH BANKS TO SECURE FEES AND CHARGES IN CONNECTION WITH RETURNED ITEMS OR
THE STANDARD FEES AND CHARGES OF SUCH BANKS IN CONNECTION WITH THE DEPOSIT
ACCOUNTS MAINTAINED BY SUCH BORROWER, GUARANTOR OR SUBSIDIARY AT SUCH BANKS (BUT
NOT ANY OTHER INDEBTEDNESS OR OBLIGATIONS);
(L)
SECURITY INTERESTS IN FAVOR OF THE RECEIVABLES
FINANCING SUBSIDIARY CREATED OR DEEMED TO EXIST IN CONNECTION WITH A PERMITTED
SECURITIZATION FACILITY (INCLUDING ANY RELATED FILINGS OF FINANCING STATEMENTS)
BUT ONLY TO THE EXTENT THAT ANY SUCH SECURITY INTEREST RELATES TO THE APPLICABLE
SECURITIZATION ASSETS ACTUALLY SOLD PURSUANT TO SUCH TRANSACTION AND PROVIDED
THAT SUCH SECURITY INTERESTS SHALL BE RELEASED AND TERMINATED AS TO ANY
SECURITIZATION ASSETS UPON THE REPURCHASE OR RECONVEYANCE OF SUCH ASSETS TO A
BORROWER OR GUARANTOR;
(M)
SECURITY INTERESTS IN ASSETS OF A BORROWER OR GUARANTOR
EXISTING AT THE TIME SUCH BORROWER OR GUARANTOR IS ACQUIRED PURSUANT TO A
PERMITTED ACQUISITION AFTER THE DATE HEREOF; PROVIDED, THAT, EACH OF THE
FOLLOWING CONDITIONS IS SATISFIED AS DETERMINED BY AGENT: (I) SUCH SECURITY
INTERESTS WERE NOT GRANTED AND DID NOT ARISE IN CONNECTION WITH, OR IN
ANTICIPATION OR CONTEMPLATION OF, SUCH PERMITTED ACQUISITION, (II) THE ASSETS
SUBJECT TO SUCH SECURITY INTERESTS DO NOT INCLUDE ANY ASSETS OF THE TYPE OR
CATEGORIES THAT CONSTITUTE COLLATERAL AND DO NOT APPLY TO ANY ASSETS OR
PROPERTIES OF ANY BORROWER OR OTHER GUARANTOR OTHER THAN ASSETS OR PROPERTIES OF
THE BORROWER OR GUARANTOR SO ACQUIRED, (III) THE INDEBTEDNESS SECURED BY SUCH
ASSETS IS PERMITTED UNDER SECTION 9.9(K) HEREOF;
(N)
JUDGMENTS AND OTHER SIMILAR LIENS ARISING IN CONNECTION
WITH COURT PROCEEDINGS THAT DO NOT CONSTITUTE AN EVENT OF DEFAULT, PROVIDED,
THAT, (I) SUCH LIENS ARE BEING CONTESTED