any
statutory or common law provisions relating to banker's liens, liens in favor of
securities intermediaries, rights of setoff or similar rights and remedies as to
deposit accounts or securities accounts or other funds maintained with
depository institutions or securities intermediaries;
(m)
Liens arising from precautionary UCC filings
regarding "true" operating leases or, to the extent permitted under the Loan
Documents, the consignment of goods to a Loan Party;
(n)
Liens on the Collateral securing the Note
Obligations having the priority set forth in the Intercreditor Agreement;
(o)
Liens referred to in Schedule B of the
Mortgage Policy insuring the Mortgage; and
(o)
Liens in favor of customs and revenues
authorities imposed by applicable Law arising in the ordinary course of business
in connection with the importation of goods and securing obligations (i) that
are not overdue by more than thirty (30) days, or (ii)(A) that are being
contested in good faith by appropriate proceedings, (B) the applicable Loan
Party or Subsidiary has set aside on its books adequate reserves with
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respect thereto in accordance with GAAP and (C) such contest effectively
suspends collection of the contested obligation and enforcement of any Lien
securing such obligation;
provided, however,
that, except as provided in any one or more of clauses
(a) through (o) above, the term "Permitted Encumbrances" shall not include any
Lien securing obligations for borrowed money.
"Permitted Indebtedness" means:
(A)
INDEBTEDNESS OUTSTANDING ON THE DATE HEREOF
AND LISTED ON SCHEDULE 7.03 AND ANY PERMITTED REFINANCING INDEBTEDNESS IN
RESPECT THEREOF;
(B)
INDEBTEDNESS OF ANY LOAN PARTY TO ANY OTHER
LOAN PARTY; PROVIDED THAT SUCH INDEBTEDNESS SHALL (I) BE EVIDENCED BY SUCH
DOCUMENTATION AS THE ADMINISTRATIVE AGENT MAY REASONABLY REQUIRE,
(II) CONSTITUTE "COLLATERAL" UNDER THIS AGREEMENT AND THE SECURITY DOCUMENTS,
(III) BE ON TERMS (INCLUDING SUBORDINATION TERMS) REASONABLY ACCEPTABLE TO THE
ADMINISTRATIVE AGENT, AND (IV) BE OTHERWISE PERMITTED PURSUANT TO SECTION 7.03;
(C)
(I) TRANSFERS PERMITTED BY SECTION 7.18 AND
(II) INTERCOMPANY INDEBTEDNESS INCURRED IN THE ORDINARY COURSE OF BUSINESS
BETWEEN THE LOAN PARTIES LOCATED WITHIN THE UNITED STATES, ON THE ONE HAND, AND
THEIR AFFILIATES IN PUERTO, RICO, CANADA AND ASIA, ON THE OTHER HAND, TO THE
EXTENT OTHERWISE PERMITTED PURSUANT TO CLAUSE (H) OF THE DEFINITION OF PERMITTED
INVESTMENTS;
(D)
WITHOUT DUPLICATION OF INDEBTEDNESS
DESCRIBED IN CLAUSE (F) OF THIS DEFINITION, PURCHASE MONEY INDEBTEDNESS OF ANY
LOAN PARTY TO FINANCE THE ACQUISITION OF ANY FIXED OR CAPITAL ASSETS, INCLUDING
THE ALABAMA CAPITAL LEASE AND OTHER CAPITAL LEASE OBLIGATIONS, AND ANY
INDEBTEDNESS ASSUMED IN CONNECTION WITH THE ACQUISITION OF ANY SUCH ASSETS OR
SECURED BY A LIEN ON ANY SUCH ASSETS PRIOR TO THE ACQUISITION THEREOF, AND ANY
PERMITTED REFINANCING INDEBTEDNESS IN RESPECT THEREOF; PROVIDED, HOWEVER, THAT
THE AGGREGATE PRINCIPAL AMOUNT OF INDEBTEDNESS PERMITTED BY THIS CLAUSE
(D) SHALL NOT EXCEED $5,000,000 AT ANY TIME OUTSTANDING; PROVIDED FURTHER THAT,
IF REQUESTED BY THE COLLATERAL AGENT, THE LOAN PARTIES SHALL CAUSE THE HOLDERS
OF ANY SUCH INDEBTEDNESS INCURRED AFTER THE CLOSING DATE TO ENTER INTO A
COLLATERAL ACCESS AGREEMENT;