INSTRUMENT OF A PERSON, OR RELATING
TO INDEBTEDNESS OR CAPITAL STOCK OF A PERSON, WHICH PERSON IS ACQUIRED BY OR
MERGED OR CONSOLIDATED WITH OR INTO THE BORROWER OR ANY RESTRICTED SUBSIDIARY,
OR WHICH AGREEMENT OR INSTRUMENT IS ASSUMED BY THE BORROWER OR ANY RESTRICTED
SUBSIDIARY IN CONNECTION WITH AN ACQUISITION OF ASSETS FROM SUCH PERSON, AS IN
EFFECT AT THE TIME OF SUCH ACQUISITION, MERGER OR CONSOLIDATION (EXCEPT TO THE
EXTENT THAT SUCH INDEBTEDNESS WAS INCURRED TO FINANCE, OR OTHERWISE IN
CONNECTION WITH, SUCH ACQUISITION, MERGER OR CONSOLIDATION); PROVIDED THAT FOR
PURPOSES OF THIS CLAUSE (II), IF A PERSON OTHER THAN THE BORROWER IS THE
SUCCESSOR COMPANY WITH RESPECT THERETO, ANY SUBSIDIARY THEREOF OR AGREEMENT OR
INSTRUMENT OF SUCH PERSON OR ANY SUCH SUBSIDIARY SHALL BE DEEMED ACQUIRED OR
ASSUMED, AS THE CASE MAY BE, BY THE BORROWER OR A RESTRICTED SUBSIDIARY, AS THE
CASE MAY BE, WHEN SUCH PERSON BECOMES SUCH SUCCESSOR COMPANY;
(III)
PURSUANT TO AN AGREEMENT OR INSTRUMENT (A "REFINANCING
AGREEMENT") EFFECTING A REFINANCING OF INDEBTEDNESS INCURRED PURSUANT TO, OR
THAT OTHERWISE EXTENDS, RENEWS, REFUNDS, REFINANCES OR REPLACES, AN AGREEMENT OR
INSTRUMENT REFERRED TO IN CLAUSE (I) OR (II) OF THIS SUBSECTION 7.7 OR THIS
CLAUSE (III) (AN "INITIAL AGREEMENT") OR CONTAINED IN ANY AMENDMENT, SUPPLEMENT
OR OTHER MODIFICATION TO AN INITIAL AGREEMENT (AN "AMENDMENT"); PROVIDED,
HOWEVER, THAT THE ENCUMBRANCES AND RESTRICTIONS CONTAINED IN ANY SUCH
REFINANCING AGREEMENT OR AMENDMENT TAKEN AS A WHOLE ARE NOT MATERIALLY LESS
FAVORABLE TO THE LENDERS THAN ENCUMBRANCES AND RESTRICTIONS CONTAINED IN THE
INITIAL AGREEMENT OR INITIAL AGREEMENTS TO WHICH SUCH REFINANCING AGREEMENT OR
AMENDMENT RELATES (AS DETERMINED IN GOOD FAITH BY THE BORROWER);
(IV)
(A) THAT RESTRICTS IN A CUSTOMARY MANNER THE SUBLETTING,
ASSIGNMENT OR TRANSFER OF ANY PROPERTY OR ASSET THAT IS SUBJECT TO A LEASE,
LICENSE OR SIMILAR CONTRACT, OR THE ASSIGNMENT OR TRANSFER OF ANY LEASE, LICENSE
OR OTHER CONTRACT, (B) BY VIRTUE OF ANY TRANSFER OF, AGREEMENT TO TRANSFER,
OPTION OR RIGHT WITH RESPECT TO, OR LIEN ON, ANY PROPERTY OR ASSETS OF THE
BORROWER OR ANY RESTRICTED SUBSIDIARY NOT OTHERWISE PROHIBITED BY THIS
AGREEMENT, (C) CONTAINED IN MORTGAGES, PLEDGES OR OTHER SECURITY AGREEMENTS
SECURING INDEBTEDNESS OF A RESTRICTED SUBSIDIARY TO THE EXTENT RESTRICTING THE
TRANSFER OF THE PROPERTY OR ASSETS SUBJECT THERETO, (D) PURSUANT TO CUSTOMARY
PROVISIONS RESTRICTING DISPOSITIONS OF REAL PROPERTY INTERESTS SET FORTH IN ANY
RECIPROCAL EASEMENT AGREEMENTS OF
91
THE BORROWER OR ANY RESTRICTED SUBSIDIARY, (E) PURSUANT TO PURCHASE MONEY
OBLIGATIONS THAT IMPOSE ENCUMBRANCES OR RESTRICTIONS ON THE PROPERTY OR ASSETS
SO ACQUIRED, (F) ON CASH OR OTHER DEPOSITS OR NET WORTH IMPOSED BY CUSTOMERS OR
SUPPLIERS UNDER AGREEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS,
(G) PURSUANT TO CUSTOMARY PROVISIONS CONTAINED IN AGREEMENTS AND INSTRUMENTS
ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS (INCLUDING BUT NOT LIMITED TO
LEASES AND LICENSES) OR IN JOINT VENTURE AND OTHER SIMILAR AGREEMENTS, (H) THAT
ARISES OR IS AGREED TO IN THE ORDINARY COURSE OF BUSINESS AND DOES NOT DETRACT
FROM THE