SHALL HAVE WAIVED IN WRITING ANY
RIGHTS IN OR TO, OR OTHER
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interest in, any of the Collateral in an agreement, in form and substance
satisfactory to Agent;
(H)
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 A BORROWER OR GUARANTOR LOCATED ON THE PREMISES
OF SUCH BORROWER OR GUARANTOR (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;
(I)
LIENS OR RIGHTS OF SETOFF OR CREDIT BALANCES OF SUCH BORROWER OR
GUARANTOR WITH CREDIT CARD ISSUERS, BUT NOT LIENS ON OR RIGHTS OF SETOFF AGAINST
ANY OTHER PROPERTY OR ASSETS OF SUCH BORROWER OR GUARANTOR PURSUANT TO THE
CREDIT CARD AGREEMENTS (AS IN EFFECT ON THE DATE HEREOF) TO SECURE THE
OBLIGATIONS OF SUCH BORROWER OR GUARANTOR TO THE CREDIT CARD ISSUERS AS A RESULT
OF FEES AND CHARGEBACKS;
(J)
DEPOSITS OF CASH WITH THE OWNER OR LESSOR OF PREMISES LEASED AND
OPERATED BY SUCH BORROWER OR GUARANTOR IN THE ORDINARY COURSE OF THE BUSINESS OF
SUCH BORROWER OR GUARANTOR TO SECURE THE PERFORMANCE BY SUCH BORROWER OR
GUARANTOR OF ITS OBLIGATIONS UNDER THE TERMS OF THE LEASE FOR SUCH PREMISES;
(K)
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 IN GOOD FAITH AND BY APPROPRIATE PROCEEDINGS
DILIGENTLY PURSUED, (II) ADEQUATE RESERVES OR OTHER APPROPRIATE PROVISION, IF
ANY, AS ARE REQUIRED BY GAAP HAVE BEEN MADE THEREFOR, (III) A STAY OF
ENFORCEMENT OF ANY SUCH LIENS IS IN EFFECT AND (IV) AGENT MAY ESTABLISH A
RESERVE WITH RESPECT THERETO;
(L)
THE SECURITY INTERESTS AND LIENS IN FAVOR OF NEW TERM LOAN AGENT
TO SECURE INDEBTEDNESS PERMITTED BY SECTION 9.9(I) HEREOF AND THAT ARE SUBJECT
TO THE TERMS AND CONDITIONS OF THE NEW TERM LOAN INTERCREDITOR AGREEMENT; AND
(M)
THE SECURITY INTERESTS AND LIENS SET FORTH ON THE INFORMATION
CERTIFICATES.
9.9
INDEBTEDNESS.
NO BORROWER OR GUARANTOR SHALL, NOR SHALL IT PERMIT
ANY OF ITS RESPECTIVE SUBSIDIARIES TO, INCUR, CREATE, ASSUME, BECOME OR BE
LIABLE IN ANY MANNER WITH RESPECT TO, OR PERMIT TO EXIST, ANY INDEBTEDNESS, OR
GUARANTEE, ASSUME, ENDORSE, OR OTHERWISE BECOME RESPONSIBLE FOR (DIRECTLY OR
INDIRECTLY), THE INDEBTEDNESS OF ANY OTHER PERSON, EXCEPT:
(A)
THE OBLIGATIONS;
(B)
PURCHASE MONEY INDEBTEDNESS (INCLUDING CAPITAL LEASES) ARISING
AFTER THE DATE HEREOF TO THE EXTENT SECURED BY PURCHASE MONEY SECURITY INTERESTS
IN EQUIPMENT (INCLUDING CAPITAL LEASES) SO LONG AS SUCH SECURITY INTERESTS DO
NOT APPLY TO ANY PROPERTY OF ANY BORROWER OR GUARANTOR, OR ANY SUBSIDIARY OF A
BORROWER OR GUARANTOR OTHER THAN THE EQUIPMENT SO ACQUIRED, AND THE INDEBTEDNESS
SECURED THEREBY DOES NOT EXCEED THE COST OF THE EQUIPMENT SO ACQUIRED, AS THE
CASE MAY BE;
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