ALL BANKING SERVICES OBLIGATIONS; AND
(II) ALL SWAP OBLIGATIONS OWING TO LENDER OR ITS AFFILIATES.
"OFF-BALANCE SHEET LIABILITY" OF A PERSON MEANS (A) ANY REPURCHASE OBLIGATION OR
LIABILITY OF SUCH PERSON WITH RESPECT TO ACCOUNTS OR NOTES RECEIVABLE SOLD BY
SUCH PERSON, (B) ANY INDEBTEDNESS, LIABILITY OR OBLIGATION UNDER ANY SALE AND
LEASEBACK TRANSACTION WHICH IS NOT A CAPITAL LEASE OBLIGATION, OR (C) ANY
INDEBTEDNESS, LIABILITY OR OBLIGATION UNDER ANY SO-CALLED "SYNTHETIC LEASE"
TRANSACTION ENTERED INTO BY SUCH PERSON, OR (D) ANY INDEBTEDNESS, LIABILITY OR
OBLIGATION ARISING WITH RESPECT TO ANY OTHER TRANSACTION WHICH IS THE FUNCTIONAL
EQUIVALENT OF OR TAKES THE PLACE OF BORROWING BUT WHICH DOES NOT CONSTITUTE A
LIABILITY ON THE BALANCE SHEETS OF SUCH PERSON (OTHER THAN OPERATING LEASES).
"OTHER TAXES" MEANS ANY AND ALL PRESENT OR FUTURE STAMP OR DOCUMENTARY TAXES OR
ANY OTHER EXCISE OR PROPERTY TAXES, CHARGES OR SIMILAR LEVIES ARISING FROM ANY
PAYMENT MADE HEREUNDER OR FROM THE EXECUTION, DELIVERY OR ENFORCEMENT OF, OR
OTHERWISE WITH RESPECT TO, THIS AGREEMENT.
"PARTICIPANT" HAS THE MEANING SET FORTH IN SECTION 8.04.
"PBGC" MEANS THE PENSION BENEFIT GUARANTY CORPORATION REFERRED TO AND DEFINED IN
ERISA AND ANY SUCCESSOR ENTITY PERFORMING SIMILAR FUNCTIONS.
"PERMITTED DISCRETION" MEANS A DETERMINATION MADE IN GOOD FAITH AND IN THE
EXERCISE OF REASONABLE (FROM THE PERSPECTIVE OF A SECURED ASSET-BASED LENDER)
BUSINESS JUDGMENT.
16
"PERMITTED ENCUMBRANCES" MEANS:
(A)
LIENS IMPOSED BY LAW FOR TAXES THAT ARE NOT
YET DUE OR ARE BEING CONTESTED IN COMPLIANCE WITH SECTION 5.04;
(B)
CARRIERS', WAREHOUSEMEN'S, MECHANICS',
MATERIALMEN'S, REPAIRMEN'S AND OTHER LIKE LIENS IMPOSED BY LAW, ARISING IN THE
ORDINARY COURSE OF BUSINESS AND SECURING OBLIGATIONS THAT ARE NOT OVERDUE BY
MORE THAN 30 DAYS OR ARE BEING CONTESTED IN COMPLIANCE WITH SECTION 5.04;
(C)
PLEDGES AND DEPOSITS MADE IN THE ORDINARY
COURSE OF BUSINESS IN COMPLIANCE WITH WORKERS' COMPENSATION, UNEMPLOYMENT
INSURANCE AND OTHER SOCIAL SECURITY LAWS OR REGULATIONS;
(D)
DEPOSITS TO SECURE THE PERFORMANCE OF BIDS,
TRADE CONTRACTS, LEASES, STATUTORY OBLIGATIONS, SURETY AND APPEAL BONDS,
PERFORMANCE BONDS AND OTHER OBLIGATIONS OF A LIKE NATURE, IN EACH CASE IN THE
ORDINARY COURSE OF BUSINESS;
(E)
JUDGMENT LIENS IN RESPECT OF JUDGMENTS THAT
DO NOT CONSTITUTE AN EVENT OF DEFAULT UNDER CLAUSE (K) OF ARTICLE VII; AND
(F)
EASEMENTS, ZONING RESTRICTIONS,
RIGHTS-OF-WAY AND SIMILAR ENCUMBRANCES ON REAL PROPERTY IMPOSED BY LAW OR
ARISING IN THE ORDINARY COURSE OF BUSINESS THAT DO NOT SECURE ANY MONETARY
OBLIGATIONS AND DO NOT MATERIALLY DETRACT FROM THE VALUE OF THE AFFECTED
PROPERTY OR INTERFERE WITH THE ORDINARY CONDUCT OF BUSINESS OF BORROWER OR ANY
SUBSIDIARY;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" MEANS:
(A)
DIRECT OBLIGATIONS OF, OR OBLIGATIONS THE
PRINCIPAL OF AND INTEREST ON WHICH ARE UNCONDITIONALLY GUARANTEED BY, THE UNITED
STATES OF AMERICA (OR BY ANY AGENCY THEREOF TO THE EXTENT SUCH OBLIGATIONS ARE
BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA), IN EACH
CASE MATURING WITHIN ONE YEAR FROM THE DATE OF ACQUISITION THEREOF;