Liens. Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “Permitted Liens”): (a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document; (b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s); (c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested; (d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt; (e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business; (f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements; (g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal; (h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries; (i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts; (i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii); (k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i); (l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods; (m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute); (n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder; (o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents (p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person; (q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof; (r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection; (s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums; (t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and (u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 3 contracts
Sources: Credit Agreement (Forbes Energy Services Ltd.), Credit Agreement (Forbes Energy Services Ltd.), Credit Agreement (Forbes Energy Services Ltd.)
Liens. Create Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, create, incur, assume or suffer permit to exist any Lien upon on any property or assets (including stock or other securities of its Propertyany Person, except the following (collectivelyincluding any Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, “Permitted Liens”):except:
(a) Liens on property or assets of the Borrower and its Subsidiaries existing on the Effective Date and set forth in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentSchedule 6.02;
(b) Liens securing fixed assets any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary; provided that (including i) such Lien is not created in contemplation of or in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof acquisition, and (ii) such Lien does not apply to any other property or assets of the incurrence of Permitted Purchase Money Debt in connection with the funding Borrower or financing of such fixed asset(s)any Subsidiary;
(c) Liens for Taxestaxes, assessments or other governmental charges or levies not yet delinquent due or which are being Properly Contestedcontested in compliance with Section 5.03;
(d) Liens (other than Liens imposed by law that do not secure Indebtedness for Taxes or imposed under ERISA) arising as a matter of law borrowed money and were incurred in the Ordinary Course ordinary course of Businessbusiness, but only if such as carriers’, warehousemen’s, mechanic’s, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business; provided that such Liens either (i) payment do not in the aggregate materially detract from the value of the obligations secured thereby is not yet due property or is being Properly Contested; (ii) assets to which such Liens do not apply or materially impair the value or use of thereof in the Property or materially impair operation of the business of any Holdings, the Borrower and the Subsidiaries or Subsidiary; and (iiiii) such Liens do not secure Debtare being contested in compliance with Section 5.03;
(e) Liens consisting upon equipment, machinery or real property (including improvements thereto and fixtures thereon), assets subject to Capital Lease Obligations and assets financed with industrial revenue bonds; provided that such Liens only secure Indebtedness incurred (A) to finance the acquisition of deposits such equipment, machinery or pledges made in the Ordinary Course of Business in connection withreal property, or to secure payment ofthe improvement of such real property, obligations under workers’ compensation(B) in respect of Capital Lease Obligations or (C) in respect of industrial revenue bonds, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (ii) such Liens (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contractsLiens securing Capital Lease Obligations) are incurred, and the related Indebtedness is created, within 180 days after the acquisition or construction of the assets financed thereby and (iii) in each case, such Liens do not encumber any other obligations of a like nature incurred in the Ordinary Course of Businessassets or properties;
(f) Liens arising leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower and its Subsidiaries taken as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementswhole;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryeasements, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easementslicenses, rights-of-way, zoning or other restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions encroachments and other similar charges or encumbrances on Real Estateencumbrances, and minor title deficiencies, statutory and common law landlords’ liens under leases to which do Holdings, the Borrower or any of its Subsidiaries is a party, in each case not interfere securing Indebtedness and not materially interfering with the conduct of the business of Holdings, the Borrower or any of its Subsidiaries;
(h) Liens (other than any Lien imposed by ERISA) for worker’s compensation, unemployment compensation and other forms of government insurance incurred in the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsbusiness;
(i) Liens on to secure (Ai) acquired Property securing Debt permitted under Section 10.1(fperformance of tenders, statutory obligations, bids, leases and contracts or other similar obligations (other than for borrowed money) entered into in the ordinary course of business or (Bii) Property acquired pursuant to a Permitted Acquisition; obligations on surety or appeal bonds, provided that the obligations secured by such Liens (xand, to the extent (without duplication) are not incurred in connection with, the value of cash or in anticipation of, property (other than Letters of Credit) forming a Person becoming a Subsidiary or the acquisition part of the Property subject security with respect to such Lien; (y) are applicable only to surety or appeal bonds exceeds the Property obligations so secured, the amount of such Subsidiary or Property acquired (and proceeds thereof) and (zexcess) do not attach to any other Property of exceed in the Credit Parties or any of their Subsidiaries and aggregate $7,500,000;
(iij) Liens securing Debt arising from precautionary Uniform Commercial Code financing statement filings regarding operating leases otherwise permitted under Section 10.1(f)(ii)hereunder;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any operating lease of Real Estate made by property to, or of any Credit Party consignor of goods consigned to, or any creditor of any consignee in goods consigned to such consignee by, the Borrower or any of its Subsidiaries as lessee or sub-lesseeSubsidiaries, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease each case in the ordinary course of business or sublease or similar agreement or statute)business;
(nl) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made arising out of judgments or awards, which have been in existence for less than 45 days from the date of creation thereof or which have been stayed or bonded pending appeal or fully covered by any Credit Party insurance (subject to applicable deductibles) and for which no enforcement action has been commenced, provided that the aggregate amount of all such judgments or any awards (and, to the extent (without duplication) the value of its Subsidiaries in connection with any letter cash or property (other than Letters of intent, or purchase agreement permitted hereunder;
(oCredit) leases in respect forming a part of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business security with respect to such judgment or award exceeds the obligations which are (i) not due or (ii) Properly Contested; providedso secured, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises amount of such Credit Party or Subsidiary (but excess) does not in connection with, or as part of, the financing thereof) from exceed $7,500,000 at any time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)outstanding; and
(um) other Liens securing obligations having under any Rate Protection Agreement consisting solely of an aggregate amount not exceeding Five Million Dollars ($5,000,000)assignment of the Borrower’s rights under such Rate Protection Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc)
Liens. Create None of Ultimate Parent, Intermediate Parent, the Borrower, the other Loan Parties or any other Subsidiary will create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or created pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Effective Date and set forth on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount of Permitted Purchase Money Debt in connection Indebtedness secured or benefited thereby is not increased (except as contemplated by Section 7.02(b)), (iii) the primary obligors and guarantors with respect thereto are not changed, and (iv) any renewal or extension of the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(b);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qh) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to Liens on any assets which are not owned by of any Credit Party or any Person that becomes a Subsidiary after the Effective Date existing at the time such Person becomes a Subsidiary and not created in contemplation of or in connection with such Person becoming a Subsidiary and securing Indebtedness permitted under Section 7.02(f), and any renewals or extensions thereof; provided that (i) the precautionary UCC financing statement filings in respect thereof and property covered thereby is not changed, (ii) equipment the amount of Indebtedness secured or benefited thereby is not increased, except by an amount equal to a reasonable premium or other materials which are not owned by reasonable amount paid, and fees and expenses reasonably incurred, in connection with any Credit Party refinancing, refunding, renewal or Subsidiary located on the premises extension of such Credit Party Indebtedness, and (iii) no Subsidiary shall be a primary obligor or guarantor with respect thereto unless (A) such Subsidiary was (but not in connection with, or as part of, pursuant to the financing thereofterms thereof would have been required to become) from a primary obligor or guarantor with respect thereto at such time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofor (B) such Subsidiary is a Loan Party;
(rj) other Liens securing other Indebtedness or other liabilities of a collection bank arising under Section 4-210 Ultimate Parent and its Subsidiaries in an aggregate principal amount not to exceed, at any time, the greater of $750,000,000 and 15% of the UCC on items Net Worth (it being understood that any Lien permitted under any other clause in this Section 7.01 shall not be included in the course of collectioncomputation described in this clause (j));
(sk) bankers’ Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing nature of insurance premiums;
(t) Liens existing on rights of set-off arising in the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)ordinary course of business; and
(ul) Liens on any assets of the Allergan Acquired Business or its Subsidiaries existing at the time of consummation of the Allergan Acquisition that are permitted, under the Allergan Merger Agreement (as in effect on the Effective Date), to remain in place following consummation of the Allergan Acquisition, and any renewals or extensions thereof; provided that (i) the property covered thereby is not changed, (ii) the amount of Indebtedness secured or benefited thereby is not increased, except by an amount equal to a reasonable premium or other Liens securing obligations having an aggregate reasonable amount not exceeding Five Million Dollars paid, and fees and expenses reasonably incurred, in connection with any refinancing, refunding, renewal or extension of such Indebtedness, and ($5,000,000)iii) no Subsidiary shall be a primary obligor or guarantor with respect thereto unless (A) such Subsidiary was (or pursuant to the terms thereof would have been required to become) a primary obligor or guarantor with respect thereto at such time or (B) such Subsidiary is a Loan Party.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (Warner Chilcott LTD), Term Loan Credit and Guaranty Agreement (Warner Chilcott LTD), Bridge Loan Credit and Guaranty Agreement (Warner Chilcott LTD)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any property or assets now owned or hereafter acquired by it (including, in the case of its Propertysecurities owned by it, except by the following (collectivelysale of such securities pursuant to any repurchase agreement or similar arrangement) or on any income or revenues or rights in respect of any thereof, “Permitted Liens”):except:
(a) Liens in favor on property or assets of Administrative Agent, LC Issuer, Swing Line Lender any Guarantor or any other Secured Party arising pursuant hereto Subsidiary existing on the Restatement Date and any extensions, renewals or under any other Loan Documentreplacements thereof; provided that such Liens (i) shall secure only those obligations that they secure on the Restatement Date and permitted refinancings thereof and (ii) shall encumber only those properties and assets of such Guarantor or such Subsidiary that they encumber on the Restatement Date;
(b) Liens securing fixed assets any Lien existing on any property or asset prior to the acquisition thereof by any Guarantor or any Subsidiary; provided that (including i) such Lien is not created in contemplation of or in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding such Lien does not apply to any other property or financing assets (other than after acquired property or assets) of such fixed asset(s)Guarantor or such Subsidiary;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or being Properly Contestedthe payment of which is not at the time required by Section 5.03;
(d) statutory Liens (of landlords and carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other than like Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Business, but only if (i) payment of the business and securing obligations secured thereby is that are not yet due or the payment of which is being Properly Contested; (ii) such Liens not at the time required by Section 5.03 or which do not materially impair in the aggregate have a material adverse effect on the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtproperty encumbered thereby;
(e) Liens consisting of pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under compliance with workers’ compensation, unemployment insurance and other types of social security laws or similar legislation, regulations or in connection with other insurance maintained by the Loan Parties or their Subsidiaries;
(f) deposits to secure the performance of tenders, bids, trade contracts and (other than for obligations for the payment of borrowed money), leases (other than DebtCapital Lease Obligations), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryzoning restrictions, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements restrictions on use of record, survey and other non-monetary title exceptions real property and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any which, in the aggregate, do not materially interfere with the ordinary conduct of its Subsidiaries in connection with any letter the business of intentthe Guarantors and the Subsidiaries, or purchase agreement permitted hereunder;
(o) taken as a whole, and ground leases in respect of real property on which facilities owned or leased by any Credit Party Guarantor or any of its Subsidiaries Subsidiary are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents;
(ph) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords any attachment or other like Liens arising in judgment Lien unless the Ordinary Course judgment it secures would constitute an Event of Business with respect to obligations which are Default under clause (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonArticle VII;
(qi) any interest or title of a lessor or lessee under any lease permitted by this Agreement (including any Lien granted by such lessor or lessee);
(j) Liens arising on Cash and Carry Securities securing Indebtedness consisting of repurchase agreements relating to Cash and Carry Securities;
(k) Liens on receivables and notes payable owing from employees or investors and related rights securing Indebtedness the proceeds of which are loaned to employees of the Guarantors, the Subsidiaries or Affiliates of any of the foregoing or to investors in the Guarantors’ or the Subsidiaries’ investment funds;
(l) Liens not otherwise permitted by this Section 6.02 securing Indebtedness or other obligations permitted to be incurred hereunder in an aggregate principal amount not to exceed $500,000,000 (plus related obligations) at any time outstanding;
(m) immaterial Liens of any Loan Party or of any Subsidiary not securing Indebtedness for borrowed money;
(n) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not interfere in any material respect with the business of the Guarantors and the Subsidiaries, taken as a whole;
(o) Liens (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on the items in the course of collection, (ii) attaching to trading accounts or other brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry;
(p) Liens deemed to exist in connection with repurchase agreements and reasonable customary initial deposits and margin deposits and similar Liens attaching to trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(q) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of any Guarantor or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Guarantors and the Subsidiaries or (iii) relating to agreements other than in connection with Indebtedness entered into by a Guarantor or a Subsidiary; and
(r) Liens arising from precautionary Uniform Commercial Code financing statement filings;
(s) Liens granted to secure on assets of a Seasoning Subsidiary securing Non-Recourse Seasoning Debt permitted under Section 10.1(m) in connection with the financing of insurance premiumssuch Seasoning Subsidiary;
(t) Liens existing on securing Indebtedness of the Closing Date Loan Parties under Back-to-Back Lending Facilities in an aggregate principal amount not to exceed $250,000,000 at any time outstanding and listed on Schedule 10.2, including related obligations;
(u) Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)required to be created pursuant to this Agreement; and
(uv) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)on the right of any Subsidiary that is a general partner to issue capital call notices and to exercise rights with respect to capital commitments owing to any Affiliate that secures Indebtedness of such Affiliate.
Appears in 3 contracts
Sources: Credit Agreement (Blackstone Inc.), Credit Agreement (Blackstone Group Inc), Credit Agreement (Blackstone Group L.P.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price date hereof and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of Lien does not extend to any additional property other than after-acquired property that is affixed or incorporated into the fixed asset(s) which were the subject thereof property covered by such Lien or financed by Indebtedness permitted under Section 7.03 and proceeds and products thereof, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness which are not overdue for a period of more than 60 days or if more than sixty (60) days overdue, but only are unfiled and no other action has been take to enforce such Lien or which are being contested in good faith and by appropriate proceedings diligently conducted, if (i) payment adequate reserves with respect thereto are maintained on the books of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting of (i) pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, other than any Lien imposed by ERISA and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any of its Restricted Subsidiaries and (iii) Liens on proceeds of insurance policies securing Indebtedness permitted under Section 7.03(m)(i);
(f) deposits to secure the performance of tenders, bids, trade contracts and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictionsservitudes, permits, reservations, exceptions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with restrictions as to the ordinary course use of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collectionreal property, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not encumbrances incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intentwhich, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations all of the foregoing, do not secure the payment of Indebtedness of a Loan Party (other than pursuant to the Loan Documents) and which are (i) do not due in any case materially detract from the value of the property subject thereto or (ii) Properly Contested; provided, that no Lien has been filed materially interfere with respect thereto or, if any such Lien shall have been filed, a stay the ordinary conduct of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books business of the applicable Person;
(qh) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(i) operating leases with respect to assets which are Liens securing Capital Leases and purchase money Indebtedness permitted under Section 7.03(e); provided that (i) such Liens securing purchase money Indebtedness do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary such Indebtedness and the precautionary UCC financing statement filings in respect proceeds and products thereof and (ii) equipment the Indebtedness secured thereby does not exceed as of the date such Indebtedness is incurred the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rj) Subject to the consent of Administrative Agent, Liens existing upon property acquired in an acquisition or of any Person that becomes a Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, and not upon any other property, securing only Indebtedness permitted by Section 7.03(i);
(k) Liens reserved in leases of business premises entered into in the ordinary course of business for rent and for compliance with the terms of the lease limited to equipment and fixtures on the leased premises;
(l) Liens (i) of a collection bank arising under Section 4-210 4.210 of the UCC on items in the course of collection;
, (sii) Liens granted attaching to secure Debt permitted under Section 10.1(mcommodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry; or (iv) in connection with Cash Management Obligations and other obligations in respect of netting services, overdraft protections and similar arrangements, in each case in connection with deposit accounts in the financing ordinary course of insurance premiumsbusiness and that are limited to Liens customary in such arrangements;
(tm) Liens existing (i) on cash advances in favor of the Closing Date seller of any property to be acquired in an Investment permitted pursuant to Sections 7.02(i) and listed on Schedule 10.2(j),to be applied against the purchase price for such Investment, including Liens securing Permitted Refinancing Debt and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 10.1(l); and7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(un) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens (in each case limited to the cash, commodity contracts or other Investments in such account) attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(o) Liens securing obligations having that constitute Guarantees of Indebtedness to the extent such Guarantees are permitted by Section 7.03;
(p) Liens on Property not constituting Collateral for the Obligations, the Cash Management Obligations or the Secured Swap Obligations and not otherwise permitted by the foregoing clauses of this Section 7.01; provided that the aggregate principal or face amount of all Indebtedness secured by Liens under this Section 7.01(o) shall not exceed $50,000,000 at any time. provided, nothing in this Section 7.01 shall in and of itself constitute or be deemed to constitute an aggregate amount not exceeding Five Million Dollars agreement or acknowledgment by the Administrative Agent or any Lender that any Indebtedness subject to or secured by any Lien, right or other interest permitted under subsections ($5,000,000)a) through (o) above ranks in priority to any Obligation.
Appears in 3 contracts
Sources: Credit Agreement (Targa Resources Partners LP), Credit Agreement (Targa Resources Partners LP), Credit Agreement (Targa Midstream Services Limited Partnership)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any property or assets (including Equity Interests or other securities of its Propertyany Restricted Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, “Permitted Liens”):except:
(a) Liens in favor on property or assets of Administrative Agent, LC Issuer, Swing Line Lender or the Borrower and its Restricted Subsidiaries existing on the date hereof and set forth on Schedule 6.02; provided that such Liens shall secure only those obligations which they secure on the date hereof and any other Secured Party arising pursuant hereto or under any other Loan DocumentPermitted Refinancing thereof;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of any Lien created under the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Loan Documents;
(c) Liens for Taxesany Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary or existing on any property or assets of any Person that becomes a Restricted Subsidiary after the date hereof prior to the time such Person becomes a Restricted Subsidiary, assessments as the case may be; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not apply to any other governmental charges not yet delinquent property or being Properly Contestedassets of the Borrower or any Restricted Subsidiary and (iii) such Lien secures only those obligations (or any Permitted Refinancing thereof) which it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary, as the case may be;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is which are being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtcontested in compliance with Section 5.03;
(e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens consisting arising in the ordinary course of business and securing obligations that (i) are not due and payable or (ii) which are being contested in good faith by appropriate proceedings so long as, in the case of this clause (ii), (x) the Borrower shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and (y) such contest operates to suspend enforcement of such Lien;
(f) pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under workers’ compliance with workmen’s compensation, unemployment insurance and other types of social security laws or similar legislation, or regulations;
(g) deposits to secure the performance of tenders, bids, trade contracts and (other than for Indebtedness), leases (other than DebtCapital Lease Obligations), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealbusiness;
(h) zoning restrictions, easements, rights-of-way, restrictions, covenants or other agreements restrictions on use of record, survey and other non-monetary title exceptions real property and other similar charges or encumbrances on Real Estate, which do not interfere with incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the Credit Parties and their respective property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Restricted Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository depositary institutions, and Liens of a collecting bank on Payment Items payment items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(ij) Liens on fixed or capital assets acquired, constructed or improved (Aincluding any such assets made the subject of a Capital Lease Obligation of) acquired Property the Borrower or any Restricted Subsidiary; provided that (i) such Liens secure Indebtedness incurred to finance such acquisition, construction or improvement and permitted by Section 6.01(d) or 6.01(e), (ii) such Liens are created, and the Indebtedness secured thereby is incurred, prior to or within 270 days after such acquisition (or construction or improvement), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost or the fair market value of such real property, improvements or equipment at the time of such acquisition (or construction) and (iv) such Liens do not apply to any other property or assets of the Borrower or any Restricted Subsidiary;
(k) judgment Liens securing judgments not constituting an Event of Default under Section 7.01(i);
(l) Liens on the Collateral (but not any other assets) securing Junior Secured Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition6.01(n); provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property at all times subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)a Junior Lien Intercreditor Agreement;
(km) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent arising with respect to pledges and deposits made in the Debt permitted under Section 10.1(b)(i)ordinary course of business securing deductibles, self-insurance, insurance premiums, co-payment, co-insurance, retentions and similar obligations to providers of insurance; and pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations to (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;
(ln) Liens arising with respect to operating leases of the property of the Borrower or any Restricted Subsidiary, in each case entered into in the ordinary course of business;
(o) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(p) Liens upon specific items of Inventory (as defined in the UCC) or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such Inventory or other goods;
(q) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods in the ordinary course of business;
(mr) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in an acquisition to be applied against the purchase price for such acquisition and (ii) consisting of an agreement to transfer any property in a disposition, in each case, solely to the extent such acquisition or disposition, as the case may be, is permitted hereunder;
(s) Liens with respect to any interest or title of a lessor under leases entered into by the Borrower or sub-lessor under any lease of Real Estate made by any Credit Party or any of its the Restricted Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiumsbusiness;
(t) Liens existing on the Closing Date and listed on Schedule 10.2assets of any Foreign Subsidiary; provided that such Liens secure only Indebtedness incurred by such Foreign Subsidiary pursuant to Section 6.01(g), including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)(h) or (j) ; and
(u) other Liens securing obligations having in an aggregate amount not exceeding Five Million Dollars (to exceed $5,000,000)10,000,000 at any time outstanding.
Appears in 3 contracts
Sources: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Liens. Create Create, incur, assume, or suffer to exist exist, or permit any Lien Restricted Subsidiary to create, incur, assume, or suffer to exist, any Lien, upon or with respect to any of its Propertyproperties, now owned or hereafter acquired, except the following (collectively, “Permitted Liens”):following:
(a1) Liens for taxes or assessments or other government charges or levies (x) if not yet past due or which remain payable without penalty or (y) which are being contested in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentgood faith by appropriate proceedings and for which appropriate reserves are maintained;
(b2) Liens imposed by law, such as mechanics’, materialmen’s, landlords’, warehousemen’s, customs authorities’ and carriers’ Liens, and other similar Liens, securing fixed assets (including obligations incurred in connection with Permitted Purchase Money Debt) to secure a portion the ordinary course of the purchase price or financing thereof so long as such Liens business which are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or which are being Properly Contestedcontested in good faith by appropriate proceedings and for which appropriate reserves have been established;
(d3) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security insurance, Social Security, or similar legislationlegislation (other than Liens imposed by ERISA);
(4) Liens, deposits, or pledges to secure the performance of bids, tenders, bids, trade contracts and leases (other than Debtcontracts for the payment of money), public or statutory obligations, surety bonds (surety, stay, appeal, indemnity, performance, or other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance similar bonds, or other similar obligations arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness;
(f5) judgment, attachment and other similar Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
connection with any court proceeding, provided (g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iiia) the execution or other enforcement of such Liens is and continues to be effectively stayed and bonded on appealthe claims secured thereby are being actively contested in good faith and by appropriate proceedings or (b) such Liens do not otherwise secure amounts exceeding $25,000,000 in the aggregate;
(h6) Subject to Section 5.14, easements, rights-of-way, restrictions (including zoning, building and land use restrictions), covenants restrictive covenants, conditions and condominium regimes (including, without limitation, any Lien rights granted pursuant to any recorded declaration of covenants, conditions, restrictions or other agreements of recordcondominium regime to any property owners’ association or similar Person that has authority to impose and collect dues or assessments), survey and other non-monetary minor irregularities in title exceptions and other similar charges or encumbrances on Real Estatewhich, which in the aggregate, do not materially interfere with the occupation, use, and enjoyment by the Borrower or any Restricted Subsidiary of the property or assets encumbered thereby in the ordinary course of business or materially impair the value of the property subject thereto;
(7) Liens securing payment obligations as described in Section 6.02(10), provided that such Liens extend only to the land or lots to which such payment obligations relate and the proceeds thereof;
(8) rights of repurchase and/or rights of first refusal in favor of sellers of any Real Property;
(9) leases or subleases granted to others not materially interfering with the ordinary course of business of the Credit Parties Borrower and their respective Subsidiariesits Restricted Subsidiaries or the use of the Real Property to which they relate;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii10) Liens securing Debt permitted under clause (3), (4), (5) or (9) of Section 10.1(f)(ii)6.02;
(k11) So long Liens securing letter of credit obligations and loans to the extent such Liens are limited to property not constituting Collateral;
(12) Liens created pursuant to the Security Documents;
(13) Liens securing Debt (including the Second Lien Notes and any Exchange Notes in respect thereof, and any guarantees in respect thereof, and together with any Refinancing Debt in respect of the Debt described in this clause (13)) in an amount not to exceed the greater of (i) $700,000,000 and (ii) 40% of Consolidated Tangible Assets, in each case less the amount of the Aggregate Commitments, which Liens incurred under this clause (13) shall, to the extent encumbering Collateral, be on a junior lien priority basis compared to the Liens securing the Facility on the same basis as the Liens securing Second Priority Obligations (as defined in the Intercreditor Agreement) are treated under the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Liens securing First Priority Obligations (as defined in the Intercreditor Agreement), pursuant to the Intercreditor Agreement or another intercreditor agreement in form and substance substantially similar to the Intercreditor Agreement or otherwise reasonably satisfactory to the Agent, provided that the Liens securing the Second Lien Notes, any Exchange Notes (as defined in the Base Indenture 2012) in respect thereof, any guarantee in respect thereof and any Refinancing Debt permitted under Section 10.1(b)(i)in respect thereof may encumber only assets that also secure the Obligations;
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m14) any interest in or title of a lessor or sub-lessor under sublessor to property subject to (i) any Capital Lease otherwise permitted by this Agreement and (ii) any other lease of Real Estate made by any Credit Party or sublease or any UCC financing statement filed in respect thereof;
(15) other Liens existing on the date of its Subsidiaries as lessee this Agreement and set forth on Schedule 6.01;
(16) any option, contract or sub-lesseeother agreement to sell any property or asset, to the extent permitted hereunderlimited to such property or asset, provided such sale is not otherwise prohibited by this Agreement;
(17) Liens on property or assets of any Restricted Subsidiary securing obligations owing to the Borrower or one or more other Restricted Subsidiaries which, with respect to any such Liens on property or assets constituting Collateral, are subordinated to the Liens created pursuant to the Security Documents in a manner reasonably satisfactory to the Agent;
(18) any right of a lender or lenders to which the Borrower or a Restricted Subsidiary may be indebted to offset against, or appropriate and apply to the payment of, such Debt any and all balances, credits, deposits, accounts or monies of the Borrower or a Restricted Subsidiary with or held by such lender or lenders;
(19) Liens encumbering customary initial deposits and margin deposits, and any other Liens on such lessorthat are customary in the Borrower’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor industry and any Liens of such lessor (whether contractually granted in such lease incurred in the ordinary course of business securing any obligations or sublease liabilities arising under interest and currency exchange rate swap agreements, forward contracts, options, futures contracts, futures options or similar agreement hedging agreements or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party arrangements designed to protect the Borrower or any of its Restricted Subsidiaries from fluctuations in connection with any letter of intentinterest rates, currency exchange rates, or purchase agreement permitted hereunderthe price of commodities;
(o20) leases in respect Liens arising out of real property on which facilities owned conditional sale, title retention, consignment or leased similar arrangements for the sale of goods entered into by any Credit Party the Borrower or any of its Restricted Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Personbusiness;
(q21) Liens arising from (i) operating leases on property acquired by the Borrower or a Restricted Subsidiary and Liens on property of a Person existing at the time such Person is merged with respect to assets which are not owned by any Credit Party or into or consolidated with the Borrower or any Restricted Subsidiary or becomes a Restricted Subsidiary; provided that in each case such Liens (A) were in existence prior to the contemplation of such acquisition, merger or consolidation, (B) do not extend to any asset other than those of the Person merged with or into or consolidated with the Borrower or the Restricted Subsidiary or the property acquired by the Borrower or the Restricted Subsidiary and (C) secure only those obligations which they secured on the precautionary UCC financing statement filings date of such merger or consolidation or designation as a Restricted Subsidiary and any Refinancing Debt in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofobligations;
(r22) Liens of a collection bank arising under Section 4-210 replacing any of the UCC on items Liens described in clauses (10), (15) and (21) above; provided that (A) the course principal amount of collection;
the Debt secured by such Liens shall not be increased (s) Liens granted except to secure Debt permitted under Section 10.1(m) the extent of reasonable premiums or other payments required to be paid in connection with the financing repayment of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted previously secured Indebtedness or Incurrence of related Refinancing Debt permitted under Section 10.1(l)and expenses incurred in connection therewith) and (B) the new Liens shall be limited to the property or part thereof which secured the Lien so replaced or property substituted therefor as a result of the destruction, condemnation or damage of such property; and
(u23) other Liens securing obligations having or liabilities not prohibited by this Agreement in an aggregate amount not exceeding Five Million Dollars (to exceed $5,000,000)20,000,000.
Appears in 3 contracts
Sources: Credit Agreement (Beazer Homes Usa Inc), Second Amended and Restated Credit Agreement (Beazer Homes Usa Inc), Credit Agreement (Beazer Homes Usa Inc)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) Prior to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after date the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Parent Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;receives an Investment Grade Rating:
(i) Liens on described in Section 7.01(b)(i) through (Axi); and
(ii) acquired Property during the Collateral Period, Liens securing Debt Indebtedness permitted under Section 10.1(f7.12(a)(vii);
(iii) or Liens securing Indebtedness of the Parent Borrower in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(Biv) Property acquired Liens securing Indebtedness of the Subsidiaries in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; and
(b) From and after the date the Parent Borrower receives an Investment Grade Rating:
(i) Liens pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, any Loan Document or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to securing any other Property of the Credit Parties or any of their Subsidiaries and Obligation;
(ii) Liens securing Debt permitted under Section 10.1(f)(ii)existing on the date hereof provided, that to the extent any such Liens secure Indebtedness in excess of $10,000,000 in the aggregate, they are listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby is not increased and the principal amount of the Indebtedness thereby secured is not increased, other than by the additional amount of premium, if any, and accrued interest on such Indebtedness and reasonable expenses incurred in connection therewith;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(liii) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest for taxes not yet delinquent or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orbeing contested in good faith and by appropriate proceedings, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(iv) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(v) Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(vi) Liens incurred or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds (including surety and appeal bonds related to judgments only to the extent permitted by clause (viii) of this Section 7.01), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(vii) easements, rights-of-way, restrictions and other similar charges or encumbrances which, in each case are granted, entered into or created in the ordinary course of business of such Person;
(qviii) attachments or other Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(ix) Liens arising from on property securing obligations permitted under Section 7.12(a)(v), provided that the amount of such obligations shall not exceed at any time an aggregate amount equal to one percent (1%) of Net Tangible Assets;
(x) Liens on property or assets of any Subsidiary securing Indebtedness of such Subsidiary owing to a Borrower;
(xi) Liens on (A) property or shares of equity interests of a Person that becomes a Subsidiary after the Closing Date, or (B) Acquired Assets acquired by a Borrower or a Subsidiary after the Closing Date, including any acquisition by means of merger or consolidation with or into a Borrower or a Subsidiary which is permitted by Section 7.02; provided (i) operating leases with respect to assets which are not owned by any Credit Party such Liens were in existence at the time such Person becomes a Subsidiary or any Subsidiary and at the precautionary UCC financing statement filings in respect thereof and time of such acquisition of such Acquired Assets, (ii) equipment such Liens were not created in contemplation of the acquisition of such Person or such Acquired Assets, (iii) such Liens do not encumber property other materials which are not than property owned by any Credit Party such Person or Subsidiary located on the premises Acquired Assets then acquired, (iv) if, as a result of the acquisition, the Indebtedness secured by such Credit Party Liens is or Subsidiary (becomes Indebtedness of the Parent Borrower but not in connection withIndebtedness of any Subsidiary, or as part of, then the financing thereof) from time to time in aggregate principal amount of Indebtedness secured thereby shall not exceed the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 Incremental EBITDA of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Acquired Subsidiary or such Acquired Assets; and
(uxii) in addition to Liens permitted by the foregoing clauses (i) through (xi), other Liens securing obligations having Indebtedness, provided that in no event will the aggregate unpaid principal amount of Indebtedness secured by such other Liens exceed at any time an aggregate amount not exceeding Five Million Dollars ($5,000,000)equal to 15% of Net Tangible Assets.
Appears in 3 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), Credit Agreement (Midcoast Energy Partners, L.P.), Credit Agreement (Midcoast Energy Partners, L.P.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens existing on the Closing Date securing fixed assets (including Indebtedness or other obligations in connection with Permitted Purchase Money Debt) to secure a portion of existence on the purchase price Closing Date listed on Schedule 7.01 and any modifications, replacements, refinancings, renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the fixed asset(sproperty covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) which were the subject proceeds and products thereof and (ii) the incurrence modification, replacement, renewal, extension or refinancing of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of benefited by such fixed asset(s)Liens (if such obligations constitute Indebtedness) is permitted by Section 7.03;
(c) Liens for Taxes, assessments or other governmental charges (i) not yet delinquent due and payable, (ii) the amount or validity of which is being Properly Contestedcontested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(d) statutory Liens (of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other than like Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness which secure amounts not overdue for a period of more than 60 days or, but only if more than 60 days overdue, (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; no action has been taken to enforce such Lien, (ii) such Liens do not materially impair Lien is being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the value or use books of the Property applicable Person in accordance with GAAP or materially impair operation of the business of any Borrower or Subsidiary; and (iii) with respect to which the failure to make payment as to all such Liens do amounts, in the aggregate, could not secure Debtreasonably be expected to have a Material Adverse Effect;
(ei) Liens consisting of deposits or pledges made incurred in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, pensions, unemployment insurance and other types of social security legislation and (ii) Liens incurred in the ordinary course of business securing insurance premiums or similar legislation, or reimbursement obligations under insurance policies;
(f) deposits to secure the performance of tenders, bids, trade contracts, governmental contracts and leases (other than DebtIndebtedness for borrowed money), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))surety, stay, customs and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of recordencroachments, survey and other non-monetary title exceptions protrusions and other similar charges or encumbrances on Real Estateand minor title defects affecting real property which, which in the aggregate, do not in any case materially and adversely interfere with the ordinary course conduct of the business of Holdings and its Restricted Subsidiaries and (ii) with respect to any Material Real Property subject to a Mortgage, any exception on the Credit Parties and their respective SubsidiariesTitle Policy related thereto;
(ih) normal and customary rights Liens securing judgments for the payment of setoff upon deposits in favor money not constituting an Event of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsDefault under Section 8.01(h);
(i) Liens on securing Indebtedness permitted under Section 7.03(f); provided that (i) such Liens attach concurrently with or within two hundred seventy (270) days after the acquisition, construction, repair, replacement or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capitalized Leases; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;
(j) (i) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business which do not (A) acquired Property securing Debt permitted under Section 10.1(f) interfere in any material respect with the business of Holdings or any of its material Restricted Subsidiaries or (B) Property acquired pursuant secure any Indebtedness (other than any obligation that is Indebtedness solely as a result of the operation of clause (e) of the definition thereof), (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by Holdings or any Restricted Subsidiary or by a statutory provision to terminate any such lease, license, franchise, grant or permit or to require periodic payments as a Permitted Acquisition; provided that such Liens condition to the continuance thereof and (xiii) are not incurred in connection withany interest or title of a lessor, sublessor, or in anticipation of, a Person becoming a Subsidiary licensor under any lease or the acquisition of the Property subject lease agreement to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties which Holdings or any of their its material Restricted Subsidiaries is a party, and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)interests of any other party granted by such licensor or lessor in such licensor’s or lessor’s fee or other interest;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods in the ordinary course of business;
(l) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or similar law on items in the course of collection, (ii) attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, (iii) in favor of a banking or other financial institution or entities and/or electronic payment service providers arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry and (iv) arising by the terms of documents of banks or other financial institutions in relation to the maintenance or administration of deposit accounts or, securities accounts;
(m) Liens (i) (A) on advances of cash or Cash Equivalents or escrow deposits in favor of the seller of any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, property to be acquired in an Investment permitted pursuant to Section 7.02 to be applied against the extent permitted hereunderpurchase price for such Investment, and (B) consisting of an agreement to Dispose of any Liens property in a Disposition permitted under Section 7.05 and (ii) on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇c▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party Holdings or any of its Subsidiaries Restricted Subsidiary in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(n) Liens on assets that are not Collateral, including on the property of any Non-U.S. Subsidiary of the Borrower (including Equity Interests held by such Non-U.S. Subsidiary) securing Indebtedness of such Non-U.S. Subsidiary to the extent permitted under Section 7.03; provided that, to the extent such Liens are on assets owned by a Loan Party, such Liens shall only secure Indebtedness or other obligations otherwise permitted hereunder and in an aggregate principal amount not to exceed the greater of (x) $5,000,000 and (y) 7.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) Liens in favor of Holdings or any Restricted Subsidiary securing Indebtedness permitted under Section 7.03(e) or other obligations other than Indebtedness owed by Holdings or any Restricted Subsidiary to Holdings or any Restricted Subsidiary;
(p) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.15), in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) any such Lien shall not encumber any other property of Holdings or any of the Restricted Subsidiaries (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the Indebtedness secured thereby is permitted under Section 7.03;
(q) Liens arising from precautionary UCC financing statement filings (or similar filings under applicable Law) regarding leases entered into by Holdings or any of the Restricted Subsidiaries in the ordinary course of business (and Liens consisting of the interests or title of the respective lessors thereunder);
(r) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by Holdings or any Restricted Subsidiary in the ordinary course of business not prohibited by this Agreement;
(s) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness (other than Indebtedness described in clause (e) of the definition thereof), (ii) relating to pooled deposit or sweep accounts of Holdings or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of such Restricted Company and (iii) relating to purchase orders and other similar agreements entered into in the ordinary course of business;
(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property;
(v) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit and/or bank guarantees issued for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods in the ordinary course of business;
(w) any pledge of the Equity Interests of an Unrestricted Subsidiary or Non-U.S. Subsidiary (other than any Equity Interests of a Non-U.S. Subsidiary that constitute Collateral) to secure Indebtedness of such Unrestricted Subsidiary or Non-U.S. Subsidiary, as applicable, to the extent such pledge constitutes an Investment permitted under this Agreement;
(x) other Liens securing Indebtedness or other obligations outstanding in an aggregate principal amount not to exceed the greater of (x) $5,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(y) Liens securing Indebtedness permitted under Section 7.03(y) (provided that (i) such Liens shall only secure the obligations secured on the date of the Permitted Acquisition or other Investment and such liens shall not extend to any other property of Holdings and its Restricted Subsidiaries and (ii) no such Lien was created in contemplation of the applicable acquisition or other Investment), Section 7.03(z), Section 7.03(aa), Section 7.03(bb) and Section 7.03(ee), in each case, to the extent contemplated by, and subject to the limitations set forth in such provisions; provided that, to the extent such Lien is on the Collateral, the beneficiaries thereof (or an agent on their behalf) shall have become party to an Acceptable Intercreditor Agreement pursuant to the terms thereof;
(z) Liens on the Collateral securing any Credit Agreement Refinancing Indebtedness;
(aa) Liens on the Collateral securing Secured Hedging Obligations and Cash Management Obligations;
(bb) Liens on cash or Cash Equivalents deposited with the applicable representative of the holder of the applicable Indebtedness pending application of such cash or Cash Equivalents to the defeasance, discharge or redemption of such Indebtedness;
(cc) ground leases in respect of real property on which facilities owned or leased by any Credit Party the Borrower or any of its Restricted Subsidiaries are located, unless such leases are expressly prohibited ;
(dd) Liens solely on any c▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the terms Borrower or any of this Agreement its Restricted Subsidiaries in connection with any letter of intent or the other Loan Documentspurchase agreement permitted hereunder;
(pee) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; providedany Non-U.S. Subsidiary, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Personother Liens and privileges arising mandatorily by Law;
(qff) Liens on receivables and related assets arising from in connection with a Qualified Securitization Financing and/or Permitted Receivables Financing;
(igg) operating leases Liens incurred in the ordinary course of business with respect to assets which are not owned by any Credit Party overdraft and related liabilities arising from treasury, depository and cash management services, credit card services, including purchasing card services, or any Subsidiary automated clearing house transfers of funds;
(hh) receipt of progress payments and advances from customers in the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located ordinary course of business to the extent the same creates a Lien on the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business related inventory and the precautionary UCC financing statement filings in respect proceeds thereof;
(rii) Liens of a collection bank arising under Section 4-210 of the UCC on items cash or Cash Equivalents securing Swap Contracts in the ordinary course of collectionbusiness submitted for clearing in accordance with applicable Requirements of Law;
(sjj) the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(kk) Liens granted to secure Debt permitted under Section 10.1(m) arising in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing any Permitted Refinancing Debt permitted under Section 10.1(l)Tax Restructuring; and
(ull) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)on cash or Cash Equivalents held in Escrow for the purpose of satisfying or discharging Indebtedness pursuant to customary escrow arrangements as described or contemplated in this Agreement.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Liens. Create The Parent will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer permit to exist any Lien upon on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of its Propertyany thereof, except the following (collectively, “Permitted Liens”):except:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or created under any other Loan Documentthe Security Documents;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion any Lien on any property or asset of the purchase price Parent or financing thereof so long as such Liens are incurred not more than ten (10) days after any Restricted Subsidiary existing on the later of date hereof and set forth in Schedule 8.02, provided that (i) the acquisition such Lien shall not apply to any other property or asset of the fixed asset(s) which were the subject thereof Parent or any Restricted Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the incurrence of Permitted Purchase Money Debt in connection with date hereof and extensions, renewals and replacements thereof that do not increase the funding or financing of such fixed asset(s)outstanding principal amount thereof;
(c) Liens imposed by any Governmental Authority for Taxestaxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; delinquent (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course case of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance property taxes and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred assessments not exceeding $2,000,000 in the Ordinary Course of Business;
(faggregate more than 90 days overdue) Liens arising as a matter of law in the Ordinary Course of Business or which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, appropriate proceedings if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonParent or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(qd) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens, and vendors’ Liens imposed by statute or common law not securing the repayment of Indebtedness, arising from in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings and Liens securing judgments (including, without limitation, pre-judgment attachments) but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (j) of Article IX;
(e) pledges or deposits under (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary worker’s compensation (including, without limitation, worker’s compensation insurance programs), unemployment insurance and the precautionary UCC financing statement filings in respect thereof other social security legislation and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection withgeneral liability, or as part ofautomobile liability, the financing thereof) from time to time in the Ordinary Course of Business excess liability, fiduciary liability, directors and the precautionary UCC financing statement filings in respect thereofofficers liability and foreign liability insurance programs;
(rf) Liens deposits to secure the performance of bids, tenders, trade contracts (other than for borrowed money), leases (other than capital leases), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a collection bank arising under Section 4-210 of the UCC on items like nature incurred in the ordinary course of collectionbusiness;
(sg) Liens granted to secure Debt permitted under Section 10.1(m) easements, rights-of-way, restrictions and other similar encumbrances incurred in connection the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of property or imperfections in title thereto which, in the aggregate, are not material in amount, and which do not, in the aggregate, materially detract from the value of the property of the Parent and its Restricted Subsidiaries or materially interfere with the financing ordinary conduct of insurance premiumsthe business of the Parent or any of its Restricted Subsidiaries;
(th) Liens existing consisting of bankers’ liens and rights of setoff, in each case, arising by operation of law or (except to the extent securing Indebtedness) by contract in the ordinary course of business, and Liens on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)documents presented in letters of credit drawings; and
(ui) Liens on fixed or capital assets acquired, constructed or improved by the Parent or any Restricted Subsidiary, provided that (i) such Liens secure Indebtedness permitted by Section 8.01(e), (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Parent or any Subsidiary;
(j) Liens on property of Restricted Subsidiaries that are not Obligors, so long as such Liens do not extend to cover property of any Obligor;
(k) licenses, on a non-exclusive basis (or, solely with respect to any territory where neither the Parent nor any Restricted Subsidiary is doing business, on an exclusive basis) of rights in the intellectual property of the Parent or any Restricted Subsidiary granted in the ordinary course of business;
(l) Liens on the Equity Interests of, and on the property or assets of, a Project Entity securing Non-Recourse Project Indebtedness;
(m) Liens on property purchased or built pursuant to any engineering, construction, procurement, manufacturing, equipment or supply contract (each, a “Customer Contract”) with a customer (including any Governmental Authority) in favor of such customer, which Liens arise in the ordinary course of business and secure the performance obligations having an of the Parent or the relevant Restricted Subsidiary (as applicable) under such Customer Contract;
(n) Liens constituting security referred to in paragraphs (c)(ii), (c)(iii) and (g) of Section 8.01; and
(o) additional Liens upon real or personal property created after the date hereof, provided that the aggregate amount of obligations secured thereby shall not exceeding Five Million Dollars (exceed $5,000,000)50,000,000.
Appears in 3 contracts
Sources: Lease Agreement (Foster Wheeler Ag), Guaranty and Suretyship Agreement (Foster Wheeler Ag), Credit Agreement (Foster Wheeler Ag)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign, file or authorize the following (collectivelyfiling under the Uniform Commercial Code of any jurisdiction a financing statement that names such Loan Party as debtor, “Permitted Liens”):other than the following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 7.01(b) to secure a portion of the purchase price and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted under Section 7.02(d);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto overdue for a period of more than 30 days or, if any such Lien shall have been filedmore than 30 days, a stay of enforcement of any such Lien shall be which are being contested in effect; providedgood faith and by appropriate proceedings diligently conducted, further that if adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions (including zoning restrictions) and other similar encumbrances or title defects affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) (or securing appeal or other surety bonds related to such judgments);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.02(f); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j) Liens not otherwise permitted by this Section so long as (i) the aggregate outstanding principal amount of the obligations secured thereby does not exceed $2,000,000 at any time and (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets encumbered thereby does not exceed (as to the Loan Parties) $3,000,000 at any one time;
(k) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Domestic Subsidiary of the Borrower or becomes a Domestic Subsidiary of the Borrower; provided that such Liens were not created in contemplation of such merger, consolidation or Investment, do not extend to any assets other materials which than those of the Person merged into or consolidated with the Borrower or such Domestic Subsidiary or acquired by the Borrower or such Domestic Subsidiary and are not owned by for Consolidated Funded Indebtedness (other than purchase money indebtedness permitted under Section 7.02(f));
(l) Liens arising in the ordinary course of business in favor of one or more financial institutions in which any Credit Loan Party maintains one or Subsidiary located on more deposit accounts in the premises ordinary course of such Credit Party or Subsidiary business securing usual and customary fees and expenses (but not in connection withattorneys fees and expenses) directly relating to such deposit accounts, or as part of, provided that such Liens secure amounts outstanding for not more than thirty days from the financing thereof) from time to time in the Ordinary Course date of Business and the precautionary UCC financing statement filings in respect thereofincurrence;
(rm) precautionary Liens arising from filing UCC financing statements in respect of a collection bank arising under Section 4-210 operating leases, provided that such Liens do not extend to any assets other than those subject of the UCC on items in the course of collectionsuch operating lease;
(sn) Liens granted attaching to brokerage or securities accounts with respect to Investments permitted by Section 7.03 to secure Debt permitted under Section 10.1(m) usual and customary fees incurred in the ordinary course in connection with the financing maintenance of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)such brokerage or securities accounts; and
(uo) other Liens securing obligations having an aggregate amount to the extent constituting a Lien, non-exclusive licenses of IP Rights of a Loan Party in the ordinary course of business and substantially consistent with past practices for terms not exceeding Five Million Dollars five ($5,000,0005) years; provided, however, that this Section 7.01 shall not apply to treasury stock of the Borrower to the extent constituting margin stock (within the meaning of Regulation U of the FRB).
Appears in 3 contracts
Sources: Amendment No. 2 and Reaffirmation of Collateral Documents (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc)
Liens. Create Create, incur, assume or suffer permit to exist exist, directly or indirectly, any Lien upon on any property now owned or hereafter acquired by it or on any income or revenues or rights in respect of its Propertyany thereof, except the following (collectively, “the "Permitted Liens”"):
(a) Liens in favor for Taxes, assessments, utilities or governmental charges not yet due and payable or that are the subject of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documenta good faith contest;
(b) statutory Liens securing fixed assets of landlords, banks (including in connection with Permitted Purchase Money Debtand rights of set-off), carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) to secure a portion of the purchase price Internal Revenue Code or financing thereof so long as such Liens are incurred not more than ten (10) days after the later ERISA or a violation of (i) the acquisition Section 436 of the fixed asset(s) which were Internal Revenue Code), in each case incurred in the subject thereof and (ii) the incurrence ordinary course of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)business;
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and incurred in the Ordinary Course ordinary course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under with workers’ ' compensation, unemployment insurance and other types of social security or similar legislationsecurity, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance and appeal bonds, or arising as a result of progress payments under bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or capital leases);
(d) Liens on property of a like nature incurred Person existing at the time such Person is merged into or consolidated with or otherwise acquired by the Borrower, provided that such Liens were not in existence prior to, and were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Ordinary Course Person merged into or consolidated with the Borrower and the replacement, renewal or extension thereof; provided that the scope of Businessany such Lien shall not be increased, or otherwise expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on the date that such Person is merged into or consolidated with or otherwise acquired by the Borrower, except for products and proceeds of the foregoing;
(e) Liens on property existing at the time of acquisition thereof by the Borrower; provided that such Liens were in existence prior to, and were not created in contemplation of, such acquisition and do not extend to any assets other than property acquired and the replacement, renewal or extension thereof; provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on the date of acquisition thereof, except for products and proceeds of the foregoing;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryeasements, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easementsreciprocal easement agreements, rights-of-way, restrictions, covenants encroachments, outstanding mineral and royalty interests, minor defects or other agreements of recordirregularities in title, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, in each case which do not interfere in any material respect with the ordinary conduct of the business of the Borrower;
(g) any interest or title of a lessor or sublessor under any lease not prohibited hereunder;
(h) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of property entered into in the ordinary course of business;
(i) any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
(j) licenses of patents, copyrights, trademarks and other intellectual property rights granted by the Borrower in the ordinary course of business and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition business of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)Borrower;
(k) So long Liens described in Schedule 5.02 and the replacement, renewal or extension thereof (including Liens incurred, assumed or suffered to exist in connection with Refinancing Indebtedness pursuant to Section 5.01(a) (solely to the extent that such Liens were in existence on the Closing Date and described on Schedule 5.02)); provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on the Intercreditor Agreement is date hereof, except for products and proceeds of the foregoing;
(l) Liens securing Indebtedness permitted pursuant to Section 5.01(d); provided, any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness; provided, that individual financings otherwise permitted to be secured hereunder may be cross collateralized to other such financings;
(m) Liens securing Indebtedness permitted to be incurred under the proviso to Section 5.01; provided that such secured Indebtedness does not exceed, in effectthe aggregate, the greater of (i) 7.5% of the Borrower's consolidated total assets plus accumulated depreciation and amortization and (ii) $500,000,000;
(n) Liens on Equity Interests of any Subsidiary or joint venture securing obligations arising in favor of the Term Loan Agent with respect other holders of Equity Interests of such Person pursuant to the Debt permitted agreements governing such Person;
(o) Liens securing judgments that do not constitute an Event of Default under Section 10.1(b)(i6.01(i);
(lp) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks in the ordinary course of business not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business, (iii) relating to purchase orders and other agreements entered into with customers in the ordinary course of business and (iv) attaching to brokerage accounts incurred in the ordinary course of business;
(q) Liens in respect of leases, subleases, licenses, sublicenses or other occupancy agreements of property in the ordinary course of business;
(r) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods;
(ms) any interest or title of a lessor or sub-lessor under any lease of Real Estate Liens securing Derivative Transactions, provided that such Derivative Transactions are not entered into for speculative purposes;
(t) deposits made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)to secure liability to insurance carriers and Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(ni) Liens on advances of Cash or Cash Equivalents in favor of the seller of any property to be acquired to be applied against the purchase price for such transaction, (ii) Liens consisting of an agreement in respect of any sale of assets; provided that such Liens attach solely on any ▇▇▇▇ ▇to the property subject to such sale of assets and (iii) e▇▇▇▇▇▇ money deposits made by any Credit Party of Cash or any of its Subsidiaries Cash Equivalents in connection with any letter of intent, intent or purchase agreement permitted hereunderagreement;
(ov) leases Liens deemed to exist in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business connection with respect to obligations which are (i) not due or (ii) Properly Contestedrepurchase agreements constituting Cash Equivalents; provided, that no Lien has been filed with respect thereto or, if such Liens do not extend to any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further assets other than those that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises subject of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)repurchase agreement; and
(uw) other Liens securing obligations having Indebtedness in an aggregate amount not exceeding Five Million Dollars (to exceed $5,000,000)25,000,000 at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Northstar Realty Finance Corp.), Facility Agreement (Northstar Realty Finance Corp.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon on any of its Propertyassets, except other than the following (collectively, “Permitted Liens”):
): (a) Liens in favor liens securing the payment of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges Taxes either not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter the validity of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or which is being Properly Contestedcontested in good faith by appropriate proceedings, and as to which such Credit Party or such Subsidiary shall, under IFRS or GAAP, as applicable, have set aside on its books and records adequate reserves; (iib) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of pledges, deposits or pledges Liens made in the Ordinary Course of Business in connection with, or to secure payment of, obligations arising under workers’ worker’s compensation, unemployment insurance insurance, social security and other types of social security or similar legislationlaws, or to secure the performance of tenders, bids, trade tenders or contracts and leases (other than Debt)for the repayment of borrowed money) or to secure indemnity, statutory obligationsperformance or other similar bonds for the performance of bids, surety bonds tenders or contracts (other than bonds related for the repayment of borrowed money) or to judgments secure statutory obligations or Adverse Proceedings unless permitted by Section 10.2(g))surety, performance stay, appeal or custom bonds, or arising as a result to secure indemnity, performance or other similar bonds in the Ordinary Course of progress payments under government contractsBusiness; (c) Liens in favor of the Collateral Agent for the benefit of the Holders; (d) Liens which arise by operation of law, and other obligations than Liens which arise by operation of a like nature Environmental Laws, incurred in the Ordinary Course of Business;
Business (for sums not constituting borrowed money) that are not overdue for a period of more than thirty (30) days or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with IFRS or GAAP, as applicable (if so required); (e) zoning restrictions, building codes, easements, rights of way, licenses, covenants and other similar restrictions affecting the use of real property that do not secure monetary obligations and do not materially impair the use of such real property for its intended purposes or the value thereof; (f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiarydescribed on Schedule 8.1, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred shall secure only those obligations which they secure on the Closing Date or, in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition case of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted the Indebtedness outstanding under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ Loan Documents, Liens securing any refinancing, renewal, replacement or extension of such Indebtedness to the extent permitted under Section 8.2(d); (g) purchase money deposits made by security interests on equipment of any Credit Party or any Subsidiary securing Capital Leases or purchase money Indebtedness in each case permitted by Section 8.2(b); (h) Liens arising from the filing of its Subsidiaries precautionary UCC or Personal Property Security Act financing statements solely as a precautionary measure in connection with any letter operating leases, licenses or consignment of intent, goods; (i) rights of offset or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like statutory banker’s Liens arising in the Ordinary Course of Business in favor of commercial banks; provided that any such Lien shall only extend to deposits and Property in possession of such commercial bank; (j) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to obligations any assets under any license or lease agreement expressly permitted under this Agreement and entered into in the Ordinary Course of Business which are do not (i) not due interfere in any material respect with the business of any Credit Party or (ii) Properly Contestedsecure any Indebtedness; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qk) judgment Liens arising from (i) operating leases with respect to assets judgments which do not constitute an Event of Default, provided that the enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings, or (ii) imposed in connection with judgments and disputes which do not constitute an Event of Default and which are not owned being contested due to legal budgetary constraints (such constraints being consistent with the Turnaround Plan), provided that the Company notified the Collateral Agent in writing promptly upon determining not to contest such judgment, dispute or related Lien; (l) non-exclusive outbound licenses or sublicenses of patents, copyrights, trademarks and other intellectual property rights granted by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 not interfering in any respect with the precautionary UCC ordinary conduct of or materially detracting from the value of the business of such Credit Party; (m) [reserved]; (n) liens described on Schedule 8.1(n); (o) [reserved]; and (p) any other Liens on Property not otherwise permitted by this Section
8.1 so long as neither (i) the aggregate principal amount of the Indebtedness and other obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the Property subject thereto exceeds $1,000,000 at any time outstanding. No Credit Party shall permit the filing of any financing statement filings in naming such Person as debtor, except for financing statements filed with respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)Liens.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the Borrower or any of its Subsidiaries as debtor (other than precautionary lease filings covering only the property subject to any such lease), or assign any accounts or other right to receive income, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 5.08(b) to secure a portion of the purchase price and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(e), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(e);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s, lessor’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Sections 7.02(g); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(uj) other Liens securing obligations having Indebtedness outstanding in an aggregate principal amount not exceeding Five Million Dollars (to exceed $5,000,000)20,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Alexion Pharmaceuticals Inc), Credit Agreement (Alexion Pharmaceuticals Inc)
Liens. Create The Parent will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon on any of its Propertyassets or property now owned or hereafter acquired, except any of the following (collectively, each a “Permitted LiensEncumbrance”):
(a) Liens securing the Obligations; provided that no Liens may secure Hedging Obligations or Bank Product Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations or Bank Product Obligations and subject to the priority of payments set forth in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentSection 2.21 and Section 8.2;
(b) Liens securing fixed assets listed in Schedule 7.2 and existing on the Restatement Date and any replacement Liens (including covering the same or a lesser scope of Collateral) in connection with Permitted Purchase Money Debt) to secure a portion respect of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)replacement Indebtedness permitted under Section 7.1;
(c) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of construction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided that (i) such Lien secures Indebtedness permitted by Section 7.1(g), (ii) such Lien attaches to such asset concurrently or within ninety (90) days after the acquisition or the completion of the construction or improvements thereof, (iii) such Lien does not extend to any other asset, and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets;
(d) Liens for Taxestaxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is levies not yet due or is which are being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; contested in good faith by appropriate proceedings and (iii) such Liens do not secure Debtwith respect to which adequate reserves are being maintained in accordance with GAAP;
(e) statutory Liens consisting of landlords, carriers, warehousemen, mechanics, materialmen, and other Liens imposed by law in the ordinary course of business for amounts not more than sixty (60) days past due or which are being contested in good faith by appropriate proceedings and provided that, if delinquent for more than sixty (60) days, adequate reserves have been set aside with respect thereto in accordance with GAAP;
(f) pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under compliance with workers’ compensation, unemployment insurance and other types of social security laws or similar legislation, regulations or letters of credit or guarantees issued in respect thereof;
(g) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums;
(h) deposits or pledges to secure the performance of bids, tenders, bidstrade contracts, trade contracts and leases (other than Debt)governmental contracts, leases, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))surety, stay, customs and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred nature, in the Ordinary Course of Business;
(f) Liens arising as a matter of law each case in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiariesbusiness;
(i) normal judgment and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(j) customary rights of setoff upon deposits in favor set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or common law of depository institutions, Liens of a collecting bank on Payment Items in banks or other financial institutions where the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties Borrower or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease Parties maintains deposits in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collectioncollection (or comparable foreign liens);
(k) leases, subleases or licenses granted to others or to the Borrower or any of its Subsidiaries (in the ordinary course of business consistent with past practices) and associated negative pledges not interfering in any material respect with the ordinary conduct of the business or operations of any Loan Party;
(l) Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted by this Agreement;
(m) easements, zoning restrictions, rights-of-way, restrictions and similar encumbrances imposed by Law or arising in the ordinary course of business that do not materially detract from the value of any Material Real Property or other material assets or materially interfere with the ordinary conduct of business of the Parent and its Subsidiaries taken as a whole; and
(n) Liens on the Real Property subject to any of the Real Estate Documents identified in any applicable ALTA mortgagee title insurance policy received and approved by the Administrative Agent (in form and substance reasonably satisfactory to the Administrative Agent) relating to such Real Property;
(o) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(p) Liens that are contractual rights of set-off relating to purchase orders and other agreements entered into with customers of the Parent and its Subsidiaries in the ordinary course of business;
(q) Liens arising from precautionary Uniform Commercial Code financing statements;
(r) Liens on any property or asset of the Borrower or any Subsidiary securing Indebtedness permitted by Section 7.1(o); provided that (i) any such Lien was not created in the contemplation of any of the foregoing and (ii) any such Lien secures only those obligations which it secures on the date that such Person becomes a Subsidiary or the date of such merger or the date of such acquisition;
(s) other Liens; provided that at the time of incurrence of the obligations secured thereby, the aggregate outstanding face amount of obligations secured by Liens granted to secure Debt permitted under Section 10.1(mexisting in reliance on this clause shall not exceed the greater of (x) in connection with $22,500,000 and (y) 10.0% of Consolidated EBITDA for the financing of insurance premiumsmost recently ended Test Period;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt Indebtedness permitted under Section 10.1(l7.1(e), to the extent contemplated by, and subject to the limitations set forth in such section; and
(u) other Liens on the Floorplan Collateral securing the Approved Floorplan Financing so long as such Liens are subject to the Floorplan Intercreditor Agreement and do not attach to any Collateral (except as may be permitted by the Floorplan Intercreditor Agreement);
(v) Liens securing obligations having an aggregate Indebtedness permitted under Section 7.1(s), so long as such Liens only encumber inventory manufactured by BRP Inc. or one of its Subsidiaries or Affiliates that is financed pursuant to the TCF Agreement and do not attach to any Collateral;
(w) Liens arising out of sale and leaseback transactions (i) existing on the Restatement Date or (ii) permitted under the definition of “Asset Sale”; and
(x) extensions, renewals, or replacements of any Lien referred to in subsections (a) through (w) of this Section; provided that (x) the principal amount of the Indebtedness secured thereby is not exceeding Five Million Dollars increased ($5,000,000)other than by any amount of any outstanding or capitalized interest and reasonable fees and expenses incurred in connection therewith) and that any such extension, renewal or replacement is limited to the assets permitted to be encumbered thereby, and (y) such Lien remains outstanding under the clause above under which it was previously incurred.
Appears in 2 contracts
Sources: Credit Agreement (OneWater Marine Inc.), Credit Agreement (OneWater Marine Inc.)
Liens. Create No Credit Party shall, nor shall it permit any of its Subsidiaries to, create, assume, incur, or suffer to exist any Lien upon on the Property of any of its PropertyCredit Party or any Subsidiary, except whether now owned or hereafter acquired, or assign any right to receive any income, other than the following (collectively, the “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other securing the Secured Party arising pursuant hereto or under any other Loan DocumentObligations;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of obligations under the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)DIP ABL Facility;
(c) Liens imposed by law, such as landlord’s, materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens, and other similar liens arising in the ordinary course of business securing obligations which if overdue for Taxes, assessments a period of more than 30 days are being contested in good faith by appropriate procedures or other governmental charges not yet delinquent or being Properly Contestedproceedings and for which adequate reserves have been established;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness out of pledges or deposits under workers compensation laws, but only if (i) payment of the obligations secured thereby is not yet due unemployment insurance, old age pensions, or is being Properly Contested; (ii) such Liens do not materially impair the value other social security or use of the Property retirement benefits, or materially impair operation of the business of any Borrower similar legislation to secure public or Subsidiary; and (iii) such Liens do not secure Debtstatutory obligations;
(e) Liens for Taxes, assessment, or other governmental charges which are not yet delinquent and payable or, if overdue, which are being actively contested in good faith by appropriate proceedings and adequate reserves for such items have been made in accordance with GAAP;
(f) Liens securing purchase money debt or Capital Lease obligations permitted under Section 6.1(d); provided that each such Lien encumbers only the Property purchased in connection with the creation of any such purchase money debt or the subject of any such Capital Lease, and all proceeds and products thereof (including insurance proceeds) and accessions thereto, and the amount secured thereby is not increased;
(g) encumbrances consisting of deposits minor easements, zoning restrictions, or pledges made other restrictions on the use of real property that do not (individually or in the Ordinary Course aggregate) materially affect the value of Business the assets encumbered thereby or materially impair the ability of any Credit Party to use such assets in connection withits business, and none of which is violated in any material aspect by existing or proposed structures or land use;
(h) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a depository institution;
(i) Liens on cash, deposit accounts or securities pledged or encumbered to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, surety and appeal bonds, government contracts, performance and return of money bonds, bids, trade contracts and leases (other than Debt)contracts, leases, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, regulatory obligations and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness;
(fj) judgment and attachment Liens arising as a matter not giving rise to an Event of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)Default;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor a banking institution arising by operation of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens law encumbering deposits in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made accounts held by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease banking institution incurred in the ordinary course of business and which are within the general parameters customary in the banking industry;
(l) Any interest or sublease title of a lessor, sublessor, licensor or similar agreement sublicensor under any lease or statute)license entered into in the ordinary course of business and covering only the asset so leased or licensed;
(m) Defects and irregularities in title to any Property which in the aggregate do not materially impair the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;
(n) Liens solely on any ▇▇▇▇ advance of cash or ▇▇▇▇▇▇▇ money deposits made by in favor of the seller of any Credit Party or any of its Subsidiaries property to be acquired in connection with any letter of intent, or purchase agreement Capital Expenditures permitted hereunder, which advances shall be applied against the purchase price for such permitted Capital Expenditures;
(o) leases Liens in respect of real property on which facilities owned or leased by any (i) Banking Services Obligations and (ii) Hedging Arrangements that are Secured Obligations (as defined in the DIP ABL Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by Agreement) under the terms of this Agreement or the other Loan DocumentsDIP ABL Credit Agreement; and
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books Property of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party Borrower or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens its Subsidiaries existing on the Closing Petition Date and listed set forth in Schedule 6.2 and refinancing, extensions, renewals and replacements thereof permitted hereunder; provided that such Liens shall secure only those obligations which they secure on Schedule 10.2, including the date hereof and such Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount shall not exceeding Five Million Dollars ($5,000,000)be extended to cover any additional Property not subject thereto on the Petition Date.
Appears in 2 contracts
Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Hi-Crush Inc.), Restructuring Support Agreement (Hi-Crush Inc.)
Liens. Create The Credit Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Lien upon with respect to any of its Property, whether now owned or after acquired, except the following (collectively, “Permitted Liens”):for:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured the Agent to secure the Credit Party arising pursuant hereto or under any other Loan DocumentObligations;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) Liens, about which any Credit Party has had knowledge for less than thirty (30) days, in an aggregate amount less than $200,000 (other than Liens created or imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or, if due, are for taxes, assessments or governmental charges or levies that are more than five (5) days from the acquisition of the fixed asset(s) date on which were the subject thereof and such items may be deemed delinquent or on which penalties for non-payment may be assessed or (ii) Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the incurrence of Permitted Purchase Money Debt in connection with the funding Property subject to any such Lien is not yet subject to foreclosure, sale or financing of such fixed asset(sloss on account thereof);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, in each case which any Credit Party has had knowledge for Taxesless than thirty (30) days, assessments or other governmental charges in an aggregate amount less than $200,000, provided that such Liens secure only amounts not yet delinquent due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being Properly Contestedcontested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the Property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(d) Liens (other than Liens for Taxes created or imposed under ERISA) arising as a matter of law and incurred or deposits made by any Consolidated Party in the Ordinary Course ordinary course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislationsecurity, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))bids, performance bondsleases, or arising as a result of progress payments under government contracts, performance and return-of-money bonds and other similar obligations (exclusive of a like nature incurred obligations for the payment of borrowed money);
(e) Liens in connection with attachments or judgments (including judgment or appeal bonds) provided that the Ordinary Course judgments secured shall, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall have been discharged within 30 days after the expiration of Businessany such stay;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions (including zoning restrictions), covenants minor defects or other agreements of record, survey and other non-monetary irregularities in title exceptions and other similar charges or encumbrances not, in any material respect, impairing the use of the encumbered Property for its intended purposes;
(g) Liens on Real EstateProperty of any Person securing purchase money Indebtedness (including Capital Leases and Synthetic Leases) of such Person permitted under Section 8.1(c), which do provided that any such Lien attaches to such Property concurrently with or within 90 days after the acquisition thereof;
(h) leases or subleases granted to others not interfere interfering in any material respect with the ordinary course of business of the Credit Parties and their respective Subsidiariesany Consolidated Party;
(i) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Credit Agreement;
(j) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.6;
(k) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(sm) Liens granted of sellers of goods to secure Debt permitted the Borrower and any of its Subsidiaries arising under Section 10.1(mArticle 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;
(n) Liens existing as of the Closing Date as set forth or as contemplated on Schedule 8.2; provided that no such Lien shall at any time be extended to or cover any Property other than the Property subject thereto on the Closing Date (other than in connection with the financing of insurance premiumscollateral substitution provisions contained in the 2001-A Term Securitization Documents);
(to) Liens existing on property owned by USRP (▇▇▇), LLC, USRP (Hawaii), LLC and/or Fuel Supply, Inc. created in connection with the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Hawaii Loan Documents; and
(up) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000Indebtedness described in Section 8.1(h)(ii).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (U S Restaurant Properties Inc), Credit Agreement (U S Restaurant Properties Inc)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any property or assets now owned or hereafter acquired by it (including, in the case of its Propertysecurities owned by it, except by the following (collectivelysale of such securities pursuant to any repurchase agreement or similar arrangement) or on any income or revenues or rights in respect of any thereof, “Permitted Liens”):except:
(a) Liens in favor on property or assets of Administrative Agent, LC Issuer, Swing Line Lender any Guarantor or any other Secured Party arising pursuant hereto Subsidiary existing on the date hereof and set forth in Schedule 6.02 and any extensions, renewals or under any other Loan Documentreplacements thereof; provided that such Liens (i) shall secure only those obligations that they secure on the date hereof and permitted refinancings thereof and (ii) shall encumber only those properties and assets of such Guarantor or such Subsidiary that they encumber on the date hereof;
(b) Liens securing fixed assets any Lien existing on any property or asset prior to the acquisition thereof by any Guarantor or any Subsidiary; provided that (including i) such Lien is not created in contemplation of or in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding such Lien does not apply to any other property or financing assets of such fixed asset(s)Guarantor or such Subsidiary;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or being Properly Contestedthe payment of which is not at the time required by Section 5.03;
(d) statutory Liens (of landlords and carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other than like Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Business, but only if (i) payment of the business and securing obligations secured thereby is that are not yet due or the payment of which is being Properly Contested; (ii) such Liens not at the time required by Section 5.03 or which do not materially impair in the aggregate have a material adverse effect on the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtproperty encumbered thereby;
(e) Liens consisting of pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under compliance with workers’ compensation, unemployment insurance and other types of social security laws or similar legislation, or regulations;
(f) deposits to secure the performance of tenders, bids, trade contracts and (other than for obligations for the payment of borrowed money), leases (other than DebtCapital Lease Obligations), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryzoning restrictions, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements restrictions on use of record, survey and other non-monetary title exceptions real property and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any which, in the aggregate, do not materially interfere with the ordinary conduct of its Subsidiaries in connection with any letter the business of intentthe Guarantors and the Subsidiaries, or purchase agreement permitted hereunder;
(o) taken as a whole, and ground leases in respect of real property on which facilities owned or leased by any Credit Party Guarantor or any of its Subsidiaries Subsidiary are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents;
(ph) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords any attachment or other like Liens arising in judgment Lien unless the Ordinary Course judgment it secures would constitute an Event of Business with respect to obligations which are Default under clause (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonArticle VII;
(qi) any interest or title of a lessor or lessee under any lease permitted by this Agreement (including any Lien granted by such lessor or lessee);
(j) Liens arising on Cash and Carry Securities securing Indebtedness permitted by Section 6.01(c);
(k) Liens on receivables and notes payable owing from employees or investors and related rights securing Indebtedness the proceeds of which are loaned to employees of the Guarantors, the Subsidiaries or Affiliates of any of the foregoing or to investors in the Guarantors’ or the Subsidiaries’ investment funds;
(l) Liens not otherwise permitted by this Section 6.02 securing Indebtedness or other obligations permitted to be incurred hereunder in an aggregate principal amount not to exceed $200,000,000 (plus related obligations) at any time outstanding;
(m) immaterial Liens of any Loan Party or of any Subsidiary not securing Indebtedness for borrowed money;
(n) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not interfere in any material respect with the business of the Guarantors and the Subsidiaries, taken as a whole;
(o) Liens (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on the items in the course of collection, (ii) attaching to trading accounts or other brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry;
(p) Liens deemed to exist in connection with repurchase agreements and reasonable customary initial deposits and margin deposits and similar Liens attaching to trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(q) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of any Guarantor or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Guarantors and the Subsidiaries or (iii) relating to agreements other than in connection with Indebtedness entered into by a Guarantor or a Subsidiary; and
(r) Liens arising from precautionary Uniform Commercial Code financing statement filings;
(s) Liens granted to secure on assets of a Seasoning Subsidiary securing Non-Recourse Seasoning Debt permitted under Section 10.1(m) in connection with the financing of insurance premiumssuch Seasoning Subsidiary;
(t) Liens existing on the Closing Date securing Indebtedness described in Section 6.01(d) and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)related obligations; and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)required to be created pursuant to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Blackstone Group L.P.), Credit Agreement (Blackstone Group L.P.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) (i) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document, (ii) Liens securing the Indebtedness permitted under Section 7.03(b)(i); provided that, the beneficiaries thereof (or an agent or trustee on their behalf) shall have become party to the First Lien Intercreditor Agreement or other Acceptable Intercreditor Agreement and (iii) Liens securing the Indebtedness permitted under Section 7.03(b)(iii); provided that, the beneficiaries thereof (or an agent or trustee on their behalf) shall have become party to the ABL Intercreditor Agreement or other Acceptable Intercreditor Agreement;
(b) Liens existing on the date hereof securing fixed assets Indebtedness or other obligations (including x) with an individual value not in connection with Permitted Purchase Money Debtexcess of $5,000,000 or (y) to secure a portion listed on Schedule 7.01(b) and in each case of the purchase price foregoing clauses (x) and (y), any modifications, replacements, refinancings, renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the fixed asset(sproperty covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) which were the subject proceeds and products thereof and (ii) the incurrence modification, replacement, renewal, extension or refinancing of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of benefited by such fixed asset(s)Liens (if such obligations constitute Indebtedness) is permitted by Section 7.03;
(c) Liens for Taxestaxes, assessments or other governmental charges (i) which are not yet delinquent overdue for a period of more than thirty (30) days, (ii) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP or being Properly Contested(iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(d) statutory or common law Liens (of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other than like Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Business, but only if business (i) payment which secure amounts not overdue for a period of the obligations secured thereby is not yet due more than sixty (60) days or is being Properly Contested; if more than sixty (60) days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Lien, (ii) such Liens do not materially impair which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the value or use books of the Property applicable Person to the extent required in accordance with GAAP or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do with respect to which the failure to make payment could not secure Debtreasonably be expected to have a Material Adverse Effect;
(e) Liens consisting of (i) pledges, deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course ordinary course of Business which are subject business in connection with workers’ compensation, payroll taxes, unemployment insurance, general liability or property insurance and/or other social security legislation; and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Third Party Agreementsthe Borrower or any of its Restricted Subsidiaries;
(f) Liens to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case incurred in the ordinary course of business and obligations in respect of letters of credit, bank guarantee or similar instruments that have been posted to support the same;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of recordcovenants, survey and other non-monetary title exceptions conditions, encroachments, protrusions and other similar charges or encumbrances on Real Estateand minor title defects affecting real property which, which in the aggregate, do not in any case materially interfere with the ordinary course conduct of the business of the Credit Parties Borrower and their respective its Restricted Subsidiaries, taken as a whole, and any exception on the Mortgage Policies issued in connection with the Mortgaged Property;
(ih) normal and customary rights Liens securing judgments for the payment of setoff upon deposits in favor money not constituting an Event of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsDefault under Section 8.01(h);
(i) Liens on (A) acquired Property securing Debt Indebtedness permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition7.03(f); provided that (i) such Liens attach concurrently with or within two hundred seventy (x270) are not incurred in connection withdays after the acquisition, construction, repair, replacement or in anticipation of, a Person becoming a Subsidiary or the acquisition improvement (as applicable) of the Property property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and Liens, (ii) such Liens securing Debt permitted under Section 10.1(f)(iido not at any time encumber any property other than the property financed by such Indebtedness, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capitalized Leases; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;
(j) leases, licenses, subleases or sublicenses, in each case in the ordinary course of business (and Liens on the property covered thereby), which do not (i) interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries, taken as a whole, or (ii) secure any Indebtedness;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods in the ordinary course of business;
(l) Liens (i) of a collection bank (including those arising under Section 4-210 of the Uniform Commercial Code) on the items in the course of collection, (ii) in favor of a banking or other financial institution or entities and/or electronic payment service providers arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and which are within the general parameters customary in the banking industry and (iii) arising by the terms of documents of banks or other financial institutions in relation to the maintenance or administration of deposit accounts, securities accounts or cash management arrangements;
(m) Liens (i) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02 to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any Disposition permitted under Section 7.05 and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(n) [reserved];
(o) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.13), in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) any Indebtedness secured thereby is permitted under Section 7.03(f) and/or Section 7.03(r)(i);
(p) any interest or title of a lessor or sub-lessor sublessor under any lease of Real Estate made leases or subleases entered into by any Credit Party the Borrower or any of its Restricted Subsidiaries as lessee in the ordinary course of business;
(q) Liens arising out of conditional sale, title retention, consignment or sub-lessee, similar arrangements for sale of goods entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(r) Liens that are contractual rights of setoff (i) relating to the extent permitted hereunderestablishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness, and (ii) relating to pooled deposit or sweep accounts of the Borrower or any Liens on such lessor’s of its Restricted Subsidiaries to permit satisfaction of overdraft or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease similar obligations incurred in the ordinary course of business of the Borrower or sublease its Restricted Subsidiaries or similar agreement (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or statute)any of its Restricted Subsidiaries in the ordinary course of business;
(ns) Liens arising from precautionary Uniform Commercial Code financing statement filings or any equivalent filings in respect of any leases;
(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property;
(v) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit issued for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;
(w) the modification, replacement, renewal or extension of any Lien permitted by clauses (b), (i) and (o) of this Section 7.01; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03;
(x) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located;
(y) Liens (i) on property of a Non-Loan Party securing Indebtedness that is permitted pursuant to Section 7.03 and (ii) on property of a Foreign Subsidiary securing obligations of such Foreign Subsidiary that are not Indebtedness;
(z) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(oaa) leases Liens securing obligations that arise in respect the ordinary or normal course of real property business and that do not constitute Indebtedness and that are not otherwise expressly contemplated by this Section 7.03;
(bb) Liens securing Indebtedness permitted pursuant to Section 7.03(m);
(cc) other Liens; provided that at the time of incurrence of the obligations secured thereby, the aggregate outstanding face amount of obligations secured by Liens existing in reliance on which facilities owned this clause shall not exceed the greater of (x) $215,000,000 and (y) 35.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(dd) Liens securing Indebtedness or leased by other obligations, provided that at the time of incurrence of the Indebtedness or other obligations secured thereby, in the case of (x) Liens securing Indebtedness or other obligations on the Collateral that are pari passu with the Lien on the Collateral securing the Obligations, the First Lien Leverage Ratio does not exceed 5.00:1.00 (or, to the extent incurred in connection with any Credit Party acquisition or any of its Subsidiaries are located, unless such leases are expressly similar investment not prohibited by this Agreement, the terms greater of 5.00:1.00 and the First Lien Leverage Ratio at the end of the most recently ended Test Period), (y) Liens securing Indebtedness or other obligations on the Collateral that are junior to the Lien on the Collateral securing the Obligations, the Secured Leverage Ratio does not exceed 5.25:1.00 (or, to the extent incurred in connection with any acquisition or similar investment not prohibited by this Agreement Agreement, the greater of 5.25:1.00 and the Secured Leverage Ratio at the end of the most recently ended Test Period) and (z) Liens securing Indebtedness or other obligations on assets that are not Collateral, the other Loan DocumentsTotal Leverage Ratio does not exceed 8.25:1.00 (or, to the extent incurred in connection with any acquisition or similar investment not prohibited by this Agreement, the greater of 8.25:1.00 and the Total Leverage Ratio at the end of the most recently ended Test Period), in each case, calculated on a Pro Forma Basis, including the application of the proceeds thereof, as of the last day of the most recently ended Test Period;
(pee) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are securing (i) not due or (iiIndebtedness permitted under Section 7.03(r), Section 7.03(s), 7.03(t), Section 7.03(w) Properly Contestedand Section 7.03(y), in each case, to the extent contemplated by, and subject to the limitations set forth in such provisions; providedprovided that, that no Lien has been filed with respect thereto or, if any to the extent such Lien is on the Collateral, the beneficiaries thereof (or an agent or trustee on their behalf) shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on become party to an Acceptable Intercreditor Agreement pursuant to the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect terms thereof;
(rff) with respect to any Foreign Subsidiary, other Liens of a collection bank and privileges arising under Section 4-210 of the UCC on items in the course of collectionmandatorily by Law;
(sgg) [reserved];
(hh) [reserved];
(ii) Liens granted created or deemed to secure Debt exist by the establishment of trusts for the purpose of satisfying government reimbursement program costs and other actions or claims pertaining to the same or related matters or other medical reimbursement programs;
(jj) Liens on cash and Cash Equivalents used to satisfy or discharge Indebtedness; provided that, such satisfaction or discharge is permitted under Section 10.1(mhereunder;
(kk) receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;
(ll) Liens on cash or permitted Investments securing Swap Contracts in the ordinary course of business submitted for clearing in accordance with applicable requirements of Law and Liens on receivables and related assets arising in connection with the financing of insurance premiumsa Qualified Securitization Financing;
(tmm) the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(nn) Liens existing on the Closing Date and listed on Schedule 10.2, including Equity Interests of Unrestricted Subsidiaries;
(oo) Liens securing arising as a result of a Permitted Refinancing Debt Sale Leaseback or other sale-leaseback permitted under by Section 10.1(l)7.05; and
(upp) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars on proceeds of Indebtedness held in Escrow for so long as the proceeds thereof are and continue to be held in Escrow. For purposes of determining compliance with this Section 7.01, if any Lien ($5,000,000)or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Lien (or a portion thereof) in any manner that complies with this covenant and may later divide and reclassify any such Lien so long as the Lien (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
Appears in 2 contracts
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising created pursuant hereto or under any other Loan Documentto the Credit Documents;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) under the Collateral Documents given to secure obligations under Swap Contracts between any Credit Party and any Lender or Affiliate of a portion Lender or any Person that was a Lender or Affiliate of a Lender at the purchase price or financing thereof so long as time it entered into such Liens Swap Contract, provided that such Swap Contracts are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)otherwise permitted under Section 8.03;
(c) Liens for Taxesexisting on the Closing Date and listed on Schedule 8.01, assessments or, to the extent not so listed, Liens, which, when taken together with all other Liens existing on the Closing Date and not so listed, secure Indebtedness in an aggregate principal amount not exceeding $5.0 million, in each case together with any extensions, replacements, modifications or other governmental charges renewals of the foregoing; provided that the collateral interests are not yet delinquent broadened or being Properly Contestedincreased or secure any Property not secured by such Liens on the Closing Date (but shall be permitted to apply to after-acquired property affixed or incorporated into the property covered by such Lien and the proceeds and products of the foregoing);
(d) Liens (other than Liens for Taxes taxes, assessments or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is governmental charges or levies not yet due or to the extent non-payment thereof is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtpermitted under Section 7.05;
(e) statutory Liens consisting of deposits landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pledges made pursuant to customary reservations or retentions of title arising in the Ordinary Course ordinary course of Business business, provided that such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same, are not overdue by more than 30 days, or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the property subject to any such Lien is not yet subject to a foreclosure, sale or loss proceeding on account thereof (other than a proceeding where foreclosure, sale or loss has been stayed));
(f) Liens incurred or deposits made by any member of the Consolidated Group in the ordinary course of business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislationsecurity, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))bids, performance bondsleases, or arising as a result of progress payments under government contracts, performance and return-of-money bonds and other similar obligations (exclusive of a like nature incurred in obligations for the Ordinary Course payment of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsborrowed money);
(g) Liens arising as a matter of law by virtue of a in connection with attachments or judgments (including judgment or judicial order against any Credit Party or Subsidiary, or any Property appeal bonds) that do not result in an Event of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealDefault under Section 9.01(i);
(h) easements, rights-of-way, covenants, conditions, restrictions (including zoning restrictions), covenants declarations, rights of reverter (other than with respect to Property subject to a Mortgage), minor defects or other agreements of record, survey and other non-monetary irregularities in title exceptions and other similar charges or encumbrances on Real Estateencumbrances, which whether or not of record, that do not not, in the aggregate, interfere in any material respect with the ordinary course of business of the Credit Parties and their respective Borrower or its Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable or in respect of depositary accountsany real property which is subject to a Mortgage, any title defects, liens, charges or encumbrances (other than such prohibited monetary Liens) which the title company is prepared to endorse or insure by exclusion or affirmative endorsement reasonably acceptable to the Administrative Agent and which is included in any title policy;
(i) Liens on property of any Person securing purchase money and Sale and Leaseback Transaction Indebtedness (Aincluding capital leases and Synthetic Leases) acquired Property securing Debt permitted of such Person, in each case to the extent incurred under Section 10.1(f8.03(c) (or (B) Property acquired pursuant to a Permitted Acquisitionany refinancing of such Indebtedness incurred under Section 8.03(l)); provided provided, that any such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable Lien attaches only to the Property financed or leased and such Lien attaches prior to, at the time of or within one hundred eighty (180) days after the later of the date of acquisition of such Subsidiary property or the date such Property acquired is placed in service (and or, in the case of Liens securing a refinancing of such Indebtedness pursuant to Section 8.03(l), any such Lien attaches only to the Property that was so financed with the proceeds thereof) and (z) do not attach to any other Property of the Credit Parties Indebtedness so refinanced);
(j) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)any member of the Consolidated Group;
(k) So long as the Intercreditor Agreement is any interest or title of a lessor or sublessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in effectforeign jurisdictions) relating to, Liens in favor of the Term Loan Agent with respect to the Debt leases and subleases permitted under Section 10.1(b)(i)by this Credit Agreement;
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods and Liens deemed to exist in connection with Investments in repurchase agreements that constitute Investments permitted by Section 8.02 hereof;
(m) normal and customary rights of setoff upon deposits of cash or other Liens originating solely by virtue of any interest statutory or title common law provision relating to bankers liens, rights of setoff or similar rights in favor of banks or other depository institutions not securing Indebtedness;
(n) Liens of a lessor or subcollection bank arising under Section 4-lessor 210 of the Uniform Commercial Code on items in the course of collection;
(o) Liens on Property securing obligations incurred under any lease of Real Estate made by any Credit Party Section 8.03(h) (or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission refinancing of such lessor Indebtedness incurred under Section 8.03(l)); provided that the Liens are not incurred in connection with, or sub-lessor in contemplation or anticipation of, the acquisition and do not attach or extend to any Property other than the Property so acquired (or, in the case of Liens securing a refinancing of such lessor (whether contractually granted in such lease in Indebtedness pursuant to Section 8.03(l), the ordinary course Property acquired with the proceeds of business or sublease or similar agreement or statutethe Indebtedness so refinanced);
(np) other Liens, provided that such Liens do not secure obligations in excess of $40.0 million;
(q) Liens in respect of any Indebtedness permitted under Section 8.03(g) to the extent such Liens extend only to Property of the Foreign Subsidiary or Foreign Subsidiaries incurring such Indebtedness (other than a Foreign Subsidiary that is a borrower under this Credit Agreement);
(r) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary;
(s) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the Borrower or any of its the Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt Investment permitted under Section 10.1(m) in connection with the financing of insurance premiumshereunder;
(t) Liens existing securing obligations incurred pursuant to Section 8.03(n);
(u) Liens on Capital Stock in joint ventures securing obligations of such joint venture, to the Closing Date and listed extent required by the terms of the organizational documents or material contracts of such joint venture;
(v) Liens on Schedule 10.2goods or inventory the purchase, including shipment or storage price of which is financed by a bank guarantee or bankers’ acceptance issued or created for the account of the Borrower or any Subsidiary in the ordinary course of business so long as such Liens securing Permitted Refinancing Debt are extinguished when such goods or inventory are delivered to the Borrower or a Subsidiary; provided, that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such bankers’ acceptance or bank guarantee to the extent permitted under Section 10.1(l)8.03;
(w) Liens securing insurance premiums financing arrangements, provided, that such Liens are limited to the applicable unearned insurance premiums; and
(ux) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)in favor of the Borrower or any Guarantor; provided that if any such Lien shall cover any Collateral, the holder of such Lien shall execute and deliver to the Administrative Agent a subordination agreement in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Live Nation, Inc.), Credit Agreement (Ticketmaster Entertainment, Inc.)
Liens. Create Borrower shall not create, incur, assume or suffer to exist any Lien upon upon, in or against, or pledge of, any of the Collateral or any of its Propertyproperties or assets or any of its shares, securities or other equity or ownership or partnership interests, whether now owned or hereafter acquired, except the following (collectively, “Permitted Liens”):
"PERMITTED LIENS"): (ai) Liens under the Loan Documents or otherwise arising in favor of Administrative AgentLender, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens imposed by law for Taxestaxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens of any Governmental Authority for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is claims not yet due or is which are being Properly Contested; (ii) contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained by such Liens do not materially impair Person in accordance with GAAP to the value or use satisfaction of the Property or materially impair operation of the business of any Borrower or Subsidiary; and Lender in its sole discretion, (iii) (A) statutory Liens of landlords (provided that any such landlord has executed a Landlord Waiver and Consent in form and substance satisfactory to Lender) and of carriers, warehousemen, mechanics, materialmen, and (B) other Liens do imposed by law or that arise by operation of law in the ordinary course of business from the date of creation thereof, in each case only for amounts not secure Debt;
yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained by such Person in accordance with GAAP to the satisfaction of Lender in its sole discretion, (eiv) Liens consisting of (A) incurred or deposits or pledges made in the Ordinary Course ordinary course of Business business (including, without limitation, surety bonds and appeal bonds) in connection with, or to secure payment of, obligations under with workers’ ' compensation, unemployment insurance and other types of social security or similar legislation, benefits or to secure the performance of tenders, bids, trade leases, contracts and leases (other than Debtfor the repayment of Indebtedness), statutory obligations and other similar obligations, surety bonds or (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or B) arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(fv) purchase money Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt Indebtedness permitted under Section 10.1(f) 7.2(iii), or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing purchase by such Person of insurance premiums;
equipment in the normal course of business, provided that such payables shall not exceed any limits on Indebtedness provided for herein and shall otherwise be Permitted Indebtedness hereunder, (tvi) Liens existing on necessary and desirable for the Closing Date operation of such Person's business, provided Lender has consented to such Liens in writing before their creation and listed existence and the priority of such Liens and the debt secured thereby are both subject and subordinate in all respects to the Liens securing the Collateral and to the Obligations and all of the rights and remedies of Lender, all in form and substance satisfactory to Lender in its sole discretion; and (vii) Liens disclosed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)7.3.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Opticare Health Systems Inc), Revolving Credit, Term Loan and Security Agreement (Opticare Health Systems Inc)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or revenues, whether now owned or hereafter acquired, except for the following (collectively, the “Permitted Liens”):
(a) Liens pursuant to any Loan Document or otherwise in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentthe Lender;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Closing Date and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(b);
(c) Liens for Taxes, assessments or other governmental charges Taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Statutory Liens (other than Liens for Taxes or imposed under ERISA) arising such as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are not overdue for a period of more than thirty (i30) not due days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person; provided that a reserve or other appropriate provision shall have been made therefor;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) Liens arising incurred or deposits made to secure the performance of bids, trade contracts, licenses and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.02(c); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition.
(i) licenses, sublicenses, leases or subleases granted to other materials which are persons in the ordinary course of business not owned interfering in any material respect with the ordinary conduct of the business of the Loan Parties or (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Credit Loan Party or Subsidiary located on the premises of by a statutory provision, to terminate any such Credit Party lease, license, franchise, grant or Subsidiary (but not in connection withpermit, or to require annual or periodic payments as part of, a condition to the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect continuance thereof;
(rk) Liens arising solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of setoff or similar rights and remedies as to deposit accounts or to other funds maintained with a depository institution;
(l) licenses of intellectual property granted by any Loan Party in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Loan Parties;
(m) filing of UCC financing statements solely as a precautionary measure in connection with operating leases;
(n) Liens of a collection collecting bank arising in the ordinary course of business under Section 4-210 of the UCC on covering only the items in the course of collectionbeing collected upon;
(so) Liens granted to secure Debt good faith deposits required in connection with any investment transaction permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)7.03; and
(up) other Liens to the extent constituting a Lien, escrow arrangements securing indemnification obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)associated any investment transaction permitted under Section 7.03.
Appears in 2 contracts
Sources: Credit Agreement (Hackett Group, Inc.), Credit Agreement (Hackett Group, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Property, except whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 8.01-1 and any renewals or extensions thereof, provided that the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by Section 8.03(b);
(c) Liens (other than Liens imposed under ERISA) for Taxestaxes, assessments or other governmental charges or levies not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) statutory Liens (of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other than Liens for Taxes imposed by law or imposed under ERISA) pursuant to customary reservations or retentions of title arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness, but provided that such Liens secure only if (i) payment of the obligations secured thereby is amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or is are being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtcontested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or other than any Lien imposed by ERISA;
(f) deposits to secure the performance of tenders, bids, trade contracts contracts, licenses and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges or encumbrances on Real Estateaffecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course conduct of the business of the Credit Parties and their respective Subsidiariesapplicable Person;
(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not in excess of the Threshold Amount (except to the extent covered by independent third-party insurance as to which the insurer has acknowledged in writing its obligation to cover), unless any such judgment remains undischarged for a period of more than sixty consecutive days during which execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under Section 8.03(c); provided that (i) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the purchase price of the Property being acquired and (iii) such Liens attach to such Property concurrently with or within ninety days after the acquisition thereof;
(j) Liens securing purchase money Indebtedness (including obligations in respect of capital leases or Synthetic Leases) permitted under Section 8.03(b); provided that such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness;
(k) leases, licenses or subleases granted to others not interfering in any material respect with the business of the Borrower or any Subsidiary;
(l) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(m) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.02;
(n) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code (or equivalent in foreign jurisdictions) on items in the course of collection;
(sp) Liens granted of sellers of goods to secure Debt permitted the Borrower and any of its Subsidiaries arising under Section 10.1(mArticle 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;
(q) Liens on Securitization Related Property created or deemed to exist in connection with the financing of insurance premiums;
(t) Permitted Securitization Transaction, but only to the extent that such Liens existing on are subject to the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Intercreditor Agreement; and
(ur) mortgage Liens on the real Property of any Person acquired after the Closing Date, provided that (i) such Liens secure Indebtedness permitted by Section 8.03(h); (ii) such Liens existed prior to such acquisition and were not created in anticipation thereof, and (iii) such Liens are not extended to any other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)Property after such acquisition.
Appears in 2 contracts
Sources: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Liens. Create Create, incur, assume, or suffer to exist any Lien lien upon or with respect to the Collateral, any of its PropertyBorrower’s properties, except or the following (collectivelyproperties of any Pledgor securing payment of the Loan, “Permitted Liens”):now owned or hereafter acquired, except:
(a) Liens and security interests in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentthe Bank;
(b) Liens securing fixed assets (including for taxes not yet due and payable or otherwise being contested in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens good faith and for which appropriate reserves are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)maintained;
(c) Liens for Taxes, assessments or other governmental charges Other liens imposed by law not yet delinquent due and payable, or otherwise being Properly Contestedcontested in good faith and for which appropriate reserves are maintained;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt[Intentionally deleted];
(e) Liens consisting of purchase money security interests on any property hereafter acquired, provided that such lien shall attach only to the property acquired;
(f) Pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under compliance with workers’ compensation, unemployment insurance and other types of social security laws or similar legislationregulations, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted any Lien imposed by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party AgreementsERISA;
(g) Liens arising as a matter incurred in the ordinary course of law by virtue of a judgment business securing insurance premiums or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealreimbursement obligations under insurance policies;
(h) easementsEasements, covenants, conditions, restrictions, building code laws, zoning restrictions, rights-of-way, restrictions, covenants or other agreements of record, survey way and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with 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 Credit Parties and their respective Subsidiaries;
(i) normal and customary rights affected property or materially interfere with the ordinary conduct of setoff upon deposits in favor business of depository institutions, Liens of a collecting bank on Payment Items in the course of collectionBorrower, and such other similar Liens granted minor title defects, or survey matters that are disclosed by current surveys, that, in each case, do not materially and adversely interfere with the Ordinary Course ordinary conduct of Business securing customary account fees and charges payable in respect the business of depositary accountsthe applicable Borrower;
(i) Liens existing on the date hereof and listed on Schedule 6.01 and solely with the prior written consent of Bank any renewals or extensions thereof where: (Ai) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are the property covered thereby is not incurred in connection withchanged, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt the amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is otherwise permitted under Section 10.1(f)(iihereunder);
(kj) So long Landlords’ and lessors’ liens in respect of rent not in default, as to Borrower’s retail locations without the Intercreditor Agreement is necessity of obtaining Bank’s consent, and as to Borrower’s non-retail locations from and after the execution and delivery to Bank of landlord/lessor’s lien waivers acceptable to Bank and its counsel for any such location, provided, however, a landlord’s lien for rent not in effect, Liens in favor of the Term Loan Agent with respect to the Debt default shall be permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title without delivery of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessorlien waiver for Borrower’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any location at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ money deposits made by any Credit Party ▇▇▇▇. ▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ so long as inventory is not stored or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunderlocated at such location;
(ok) leases Liens arising solely by virtue of any statutory or common law provisions relating to banker’s liens, liens in respect favor of real property on which facilities owned securities intermediaries, rights of setoff or leased by any Credit Party similar rights and remedies as to deposit accounts or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords securities accounts or other like Liens arising in the Ordinary Course of Business funds maintained with respect to obligations which are (i) not due depository institutions or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Personsecurities intermediaries;
(ql) Liens arising from (i) precautionary UCC filings regarding “true” operating leases with respect or the consignment of goods to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofBorrower;
(rm) 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;
(n) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(uo) other Liens securing incurred in the ordinary course of business of the Borrower which secure obligations having an aggregate amount that do not exceeding Five Million Dollars (exceed $5,000,000)250,000 at any time in the aggregate.
Appears in 2 contracts
Sources: Loan Agreement (Body Central Corp), Loan Agreement (Body Central Corp)
Liens. Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “Permitted Liens”):
(a) Liens in favor The Company will not directly or indirectly create, incur, assume or permit to exist (upon the happening of Administrative Agenta contingency or otherwise) any Lien on or with respect to any of the Collateral, LC Issuerwhether now owned or held or hereafter acquired, Swing Line Lender or any other Secured Party income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(i) Liens arising pursuant hereto under the Note Documentation; or
(ii) Liens for taxes not yet due or under any other Loan Document;which are being contested in good faith and by appropriate proceedings in the circumstances, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP.
(b) Liens securing fixed assets The Company will not permit ▇▇▇▇▇ Oxford, any ▇▇▇▇▇ Oxford Entity or any ▇▇▇▇▇ Oxford Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including in connection upon the happening of a contingency or otherwise) any Lien on or with Permitted Purchase Money Debt) respect to secure a portion any of the purchase price its property or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of assets, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(i) Liens existing on the acquisition date hereof that secure Indebtedness listed on Schedule 5.6 hereto and any renewals or extensions thereof; provided that the property covered thereby is not increased and any renewal or extension of the fixed asset(s) which were the subject thereof and obligations secured or benefitted thereby is permitted pursuant to Section 9.3;
(ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sLiens securing Indebtedness permitted pursuant to Section 9.3(b)(ii);
(ciii) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due or is which are being Properly Contested; (ii) such Liens do not materially impair contested in good faith and by appropriate proceedings in the value or use circumstances, if adequate reserves with respect thereto are maintained on the books of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(eiv) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens consisting of deposits or pledges made arising in the Ordinary Course ordinary course of Business business which are not overdue for a period of more than 60 days or which are being contested in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance good faith and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred appropriate proceedings in the Ordinary Course circumstances, if adequate reserves with respect thereto are maintained on the books of Businessthe applicable Person to the extent required in accordance with GAAP;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(hv) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges encumbrances affecting real property and other minor defects or irregularities in title and other similar encumbrances on Real Estateincluding the reservations, limitations, provisos and conditions, which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property of ▇▇▇▇▇ Oxford, any ▇▇▇▇▇ Oxford Entity or any ▇▇▇▇▇ Oxford Subsidiary, as applicable, or materially interfere with the ordinary course conduct of the business of the Credit Parties and their respective Subsidiariesapplicable Person;
(ivi) normal and customary statutory rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities set-off arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)business;
(nvii) with respect to any real property, immaterial title defects or irregularities that do not, individually or in the aggregate, materially impair the use of such real property;
(viii) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits or other escrow arrangements made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)agreement; and
(uix) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)arising under the Note Documentation.
Appears in 2 contracts
Sources: Mezzanine Note Agreement (Apartment Income REIT Corp.), Mezzanine Note Agreement (Aimco OP L.P.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor existing on the Closing Date and listed on Schedule 7.01 and any renewals, extensions or replacements thereof; provided that the property covered thereby is not increased, and with respect to any replacement Lien, the amount of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentIndebtedness secured by such Lien shall not be increased;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Businessfor taxes, but only if (i) payment of the obligations secured thereby is assessments or governmental charges or levies not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) Liens of carriers, warehousemen, mechanics, materialmen, workmen and repairmen or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted;
(d) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age benefits, other social security obligations, taxes, assessments, statutory obligations and other similar charges, other than any Lien imposed by ERISA;
(e) (i) deposits to secure the performance of bids, tenders, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance and return of money bonds, agreements with utilities and other obligations of a like nature incurred in the ordinary course of business (including in each case deposits and/or Liens securing letters of credit issued in lieu of any such cash deposits), and (ii) other cash deposits required to be made in the ordinary course of business, including those made to secure health, safety and environmental obligations in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qg) Liens arising from securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments), which judgments do not constitute an Event of Default under Section 8.01(h), and the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any such legal proceeding;
(h) Liens securing Indebtedness permitted under Section 7.03(c); provided that (i) operating leases with respect to assets which are such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment with respect to Indebtedness permitted by Section 7.03(c)(i) such Liens attach to such property concurrently with or other materials which are not owned by any Credit Party or Subsidiary located on within ninety days after the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect acquisition thereof;
(ri) leases or subleases granted to others not interfering in any material respect with the business of any Loan Party or any Subsidiary;
(j) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(k) normal and customary rights of setoff and other Liens upon deposits of cash and securities in favor of banks, brokers or other financial institutions;
(l) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(sm) any Lien existing on property (and the proceeds thereof) existing at the time of its acquisition and any modification, replacement, renewal or extension thereof; provided that such Lien was not created in contemplation of such acquisition;
(n) Liens granted incurred or assumed in the ordinary course on cash, marketable securities, real estate loans (including related purchase commitments) commodities or other financial products to secure Debt stock lending transactions, repurchase agreements, and other collateralized financing transactions at Subsidiaries;
(o) pledges of securities or commodity positions and exchange memberships in the ordinary course of business;
(p) deposits or securities with commodity or securities exchanges or clearing organizations, or with other exchanges or markets, in each case in the ordinary course of business;
(q) Liens securing Indebtedness permitted under Section 10.1(m) in connection with the financing of insurance premiums7.03(h);
(tr) Liens existing on cash and marketable securities granted by Berkeley Point in favor of ▇▇▇▇▇▇ ▇▇▇ under the Closing Date Delegated Underwriting and listed on Schedule 10.2Servicing Program and/or ▇▇▇▇▇▇▇ Mac under the Targeted Affordable Housing Program in respect of loss sharing arrangements or similar programs, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)in each case in the ordinary course of business; and
(us) other Liens securing Indebtedness or other obligations having in an aggregate principal amount not exceeding Five Million Dollars (to exceed at any one time, the difference of $5,000,00030,000,000 and any Indebtedness incurred pursuant to Section 7.03(j).
Appears in 2 contracts
Sources: Credit Agreement (Newmark Group, Inc.), Credit Agreement (Newmark Group, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) (i) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document, (ii) Liens securing the Indebtedness permitted under Section 7.03(b)(i); provided that, the beneficiaries thereof (or an agent or trustee on their behalf) shall have become party to the First Lien Intercreditor Agreement or other Acceptable Intercreditor Agreement and (iii) Liens securing the Indebtedness permitted under Section 7.03(b)(iii); provided that, the beneficiaries thereof (or an agent or trustee on their behalf) shall have become party to the ABL Intercreditor Agreement or other Acceptable Intercreditor Agreement;
(b) Liens existing on the date hereof securing fixed assets Indebtedness or other obligations (including x) with an individual value not in connection with Permitted Purchase Money Debtexcess of $5,000,000 or (y) to secure a portion listed on Schedule 7.01(b) and in each case of the purchase price foregoing clauses (x) and (y), any modifications, replacements, refinancings, renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the fixed asset(sproperty covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) which were the subject proceeds and products thereof and (ii) the incurrence modification, replacement, renewal, extension or refinancing of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of benefited by such fixed asset(s)Liens (if such obligations constitute Indebtedness) is permitted by Section 7.03;
(c) Liens for Taxestaxes, assessments or other governmental charges (i) which are not yet delinquent overdue for a period of more than thirty (30) days, (ii) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP or being Properly Contested(iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(d) statutory or common law Liens (of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other than like Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Business, but only if business (i) payment which secure amounts not overdue for a period of the obligations secured thereby is not yet due more than sixty (60) days or is being Properly Contested; if more than sixty (60) days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Lien, (ii) such Liens do not materially impair which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the value or use books of the Property applicable Person to the extent required in accordance with GAAP or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do with respect to which the failure to make payment could not secure Debtreasonably be expected to have a Material Adverse Effect;
(ei) Liens consisting of pledges, deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course ordinary course of Business which are subject business in connection with workers’ compensation, payroll taxes, unemployment insurance, general liability or property insurance and/or other social security legislation; and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Third Party Agreementsthe Borrower or any of its Restricted Subsidiaries;
(f) Liens to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case incurred in the ordinary course of business and obligations in respect of letters of credit, bank guarantee or similar instruments that have been posted to support the same;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of recordcovenants, survey and other non-monetary title exceptions conditions, encroachments, protrusions and other similar charges or encumbrances on Real Estateand minor title defects affecting real property which, which in the aggregate, do not in any case materially interfere with the ordinary course conduct of the business of the Credit Parties Borrower and their respective its Restricted Subsidiaries, taken as a whole, and any exception on the Mortgage Policies issued in connection with the Mortgaged Property;
(ih) normal and customary rights Liens securing judgments for the payment of setoff upon deposits in favor money not constituting an Event of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsDefault under Section 8.01(h);
(i) Liens on (A) acquired Property securing Debt Indebtedness permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition7.03(f); provided that (i) such Liens attach concurrently with or within two hundred seventy (x270) are not incurred in connection withdays after the acquisition, construction, repair, replacement or in anticipation of, a Person becoming a Subsidiary or the acquisition improvement (as applicable) of the Property property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and Liens, (ii) such Liens securing Debt permitted under Section 10.1(f)(iido not at any time encumber any property other than the property financed by such Indebtedness, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capitalized Leases; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;
(j) leases, licenses, subleases or sublicenses, in each case in the ordinary course of business (and Liens on the property covered thereby), which do not (i) interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries, taken as a whole, or (ii) secure any Indebtedness;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods in the ordinary course of business;
(l) Liens (i) of a collection bank (including those arising under Section 4-210 of the Uniform Commercial Code) on the items in the course of collection, (ii) in favor of a banking or other financial institution or entities and/or electronic payment service providers arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and which are within the general parameters customary in the banking industry and (iii) arising by the terms of documents of banks or other financial institutions in relation to the maintenance or administration of deposit accounts, securities accounts or cash management arrangements;
(m) Liens (i) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02 to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any Disposition permitted under Section 7.05 and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(n) [reserved];
(o) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.13), in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) any Indebtedness secured thereby is permitted under Section 7.03(f) and/or Section 7.03(r)(i);
(p) any interest or title of a lessor or sub-lessor sublessor under any lease of Real Estate made leases or subleases entered into by any Credit Party the Borrower or any of its Restricted Subsidiaries as lessee in the ordinary course of business;
(q) Liens arising out of conditional sale, title retention, consignment or sub-lessee, similar arrangements for sale of goods entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(r) Liens that are contractual rights of setoff (i) relating to the extent permitted hereunderestablishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness, and (ii) relating to pooled deposit or sweep accounts of the Borrower or any Liens on such lessor’s of its Restricted Subsidiaries to permit satisfaction of overdraft or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease similar obligations incurred in the ordinary course of business of the Borrower or sublease its Restricted Subsidiaries or similar agreement (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or statute)any of its Restricted Subsidiaries in the ordinary course of business;
(ns) Liens arising from precautionary Uniform Commercial Code financing statement filings or any equivalent filings in respect of any leases;
(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property;
(v) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit issued for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;
(w) the modification, replacement, renewal or extension of any Lien permitted by clauses (b), (i) and (o) of this Section 7.01; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03;
(x) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located;
(y) Liens (i) on property of a Non-Loan Party securing Indebtedness that is permitted pursuant to Section 7.03 and (ii) on property of a Foreign Subsidiary securing obligations of such Foreign Subsidiary that are not Indebtedness;
(z) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(oaa) leases Liens securing obligations that arise in respect the ordinary or normal course of real property business and that do not constitute Indebtedness and that are not otherwise expressly contemplated by this Section 7.03;
(bb) Liens securing Indebtedness permitted pursuant to Section 7.03(m);
(cc) other Liens; provided that at the time of incurrence of the obligations secured thereby, the aggregate outstanding face amount of obligations secured by Liens existing in reliance on which facilities owned this clause shall not exceed the greater of (x) $215,000,000 and (y) 35.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(dd) Liens securing Indebtedness or leased by other obligations, provided that at the time of incurrence of the Indebtedness or other obligations secured thereby, in the case of (x) Liens securing Indebtedness or other obligations on the Collateral that are pari passu with the Lien on the Collateral securing the Obligations, the First Lien Leverage Ratio does not exceed 5.00:1.00 (or, to the extent incurred in connection with any Credit Party acquisition or any of its Subsidiaries are located, unless such leases are expressly similar investment not prohibited by this Agreement, the terms greater of 5.00:1.00 and the First Lien Leverage Ratio at the end of the most recently ended Test Period), (y) Liens securing Indebtedness or other obligations on the Collateral that are junior to the Lien on the Collateral securing the Obligations, the Secured Leverage Ratio does not exceed 5.25:1.00 (or, to the extent incurred in connection with any acquisition or similar investment not prohibited by this Agreement Agreement, the greater of 5.25:1.00 and the Secured Leverage Ratio at the end of the most recently ended Test Period) and (z) Liens securing Indebtedness or other obligations on assets that are not Collateral, the other Loan DocumentsTotal Leverage Ratio does not exceed 8.25:1.00 (or, to the extent incurred in connection with any acquisition or similar investment not prohibited by this Agreement, the greater of 8.25:1.00 and the Total Leverage Ratio at the end of the most recently ended Test Period), in each case, calculated on a Pro Forma Basis, including the application of the proceeds thereof, as of the last day of the most recently ended Test Period;
(pee) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are securing (i) not due or (iiIndebtedness permitted under Section 7.03(r), Section 7.03(s), 7.03(t), Section 7.03(w) Properly Contestedand Section 7.03(y), in each case, to the extent contemplated by, and subject to the limitations set forth in such provisions; providedprovided that, that no Lien has been filed with respect thereto or, if any to the extent such Lien is on the Collateral, the beneficiaries thereof (or an agent or trustee on their behalf) shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on become party to an Acceptable Intercreditor Agreement pursuant to the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect terms thereof;
(rff) with respect to any Foreign Subsidiary, other Liens of a collection bank and privileges arising under Section 4-210 of the UCC on items in the course of collectionmandatorily by ▇▇▇;
(sgg) [reserved];
(hh) [reserved];
(ii) Liens granted created or deemed to secure Debt exist by the establishment of trusts for the purpose of satisfying government reimbursement program costs and other actions or claims pertaining to the same or related matters or other medical reimbursement programs;
(jj) Liens on cash and Cash Equivalents used to satisfy or discharge Indebtedness; provided that, such satisfaction or discharge is permitted under Section 10.1(mhereunder;
(kk) receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;
(ll) Liens on cash or permitted Investments securing Swap Contracts in the ordinary course of business submitted for clearing in accordance with applicable requirements of Law and Liens on receivables and related assets arising in connection with the financing of insurance premiumsa Qualified Securitization Financing;
(tmm) the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(nn) Liens existing on the Closing Date and listed on Schedule 10.2, including Equity Interests of Unrestricted Subsidiaries;
(oo) Liens securing arising as a result of a Permitted Refinancing Debt Sale Leaseback or other sale-leaseback permitted under by Section 10.1(l)7.05; and
(upp) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ▇▇▇▇▇ on proceeds of Indebtedness held in Escrow for so long as the proceeds thereof are and continue to be held in Escrow. For purposes of determining compliance with this Section 7.01, if any Lien ($5,000,000)or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Lien (or a portion thereof) in any manner that complies with this covenant and may later divide and reclassify any such Lien so long as the Lien (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
Appears in 2 contracts
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price date hereof and listed on Schedule 7.02 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.01(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.01(d);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonPerson in accordance with GAAP;
(qd) Landlords’ and lessors’ Liens arising in respect of rent not in default; Liens in respect of pledges or deposits under worker’s compensation, unemployment insurance, social security laws, or similar legislation (other than ERISA) or in connection with appeal and similar bonds incidental to litigation; mechanics’, laborers’, carriers’, warehousemans’, materialmen’s and similar Liens, if the obligations secured by such Liens are not then delinquent; Liens securing the performance of bids, tenders, contracts (other than for the payment of money); and statutory obligations incidental to the conduct of its business and that do not in the aggregate materially detract from the value of its property or materially impair the use thereof in the operation of its business;
(e) Judgment Liens that shall not have been in existence for a period longer than 30 days after the creation thereof or, if a stay of execution shall have been obtained, for a period longer than 30 days after the expiration of such stay; 75911819_12
(f) Easements, rights of way, restrictions, encroachments, covenants running with the land and other similar charges or encumbrances relating to real property and not interfering in a material way with the ordinary conduct of its business;
(g) Purchase money Liens and Liens on real property securing construction or permanent real estate financing where:
(i) operating leases with respect to assets which are Liens on real property under Synthetic Leases, any such Lien does not owned by any Credit Party exceed an amount equal to 100% of the lessor’s (or any Subsidiary the lessor’s lender’s) contribution to the costs of the real property and the precautionary UCC financing statement filings in respect thereof improvements under Synthetic Lease agreements, including amounts incurred under such Synthetic Leases on account of bank fees, closing expenses, capitalized interest and other similar obligations; and
(ii) equipment in all other cases, the Lien does not exceed 100% of the cost of the real property and all improvements thereon and does not extend beyond the property purchased or constructed and does not extend to any other materials property other than the property purchased or constructed;
(h) Security interests in favor of the issuer of any documentary letters of credit for the account of the Borrower covering any documents presented in connection with a drawing under any such letter of credit; all goods which are not owned by described in such documents or any Credit Party or Subsidiary located on the premises such letter of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business credit; and the precautionary UCC financing statement filings in respect proceeds thereof;
(ri) Liens of a collection bank arising under Section 4-210 of the UCC on items not to exceed $75,000,000 in the course aggregate outstanding at any time (i) on cash that is cash collateral securing letters of collection;
credit not issued pursuant to the Loan Documents or (sii) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Insurance Trust Investments; and
(uj) other Security interests and Liens securing charges or obligations having an of the Borrower and its Subsidiaries in amounts not to exceed $50,000,000 in the aggregate amount outstanding at any time in addition to those Liens permitted under subsections (a) through (i) of this Section 7.02, provided, however, that with respect to purchase money Liens securing the purchase price of capital assets (including rights of lessors under capital leases), (A) each such Lien is given solely to secure the purchase price of, or the lease obligations relating to, such asset, does not exceeding Five Million Dollars extend to any other property and is given at the time or within 30 days of the acquisition of such asset, and ($5,000,000)B) the Indebtedness secured thereby does not exceed the lesser of the cost of such asset or its fair market value at the time such security interest attaches.
Appears in 2 contracts
Sources: Credit Agreement (Ross Stores Inc), Credit Agreement (Ross Stores Inc)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentsecuring the Notes;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date of the purchase price this Agreement and listed on Schedule 10.1 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 10.3(a)(iv), and (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 10.3(a)(iv);
(c) Liens for Taxestaxes, assessments assessments, obligations under workers’ compensation or other governmental social security legislation or other requirements, charges or levies of any Governmental Authority, in each case not yet delinquent overdue, or which are being Properly Contestedcontested in good faith by appropriate proceedings diligently conducted;
(d) inchoate Liens (other than Liens for Taxes or and charges imposed under ERISA) arising as a matter of by law and incidental to construction, maintenance, development or operation of properties, or the operation of business, in the Ordinary Course ordinary course of Business, but only business if (i) payment of the obligations obligation secured thereby is not yet due overdue or if the validity or amount of which is being Properly Contested; (ii) such Liens do not materially impair contested in good faith by the value MLP, the Issuer or use any of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtits Restricted Subsidiaries;
(e) Liens consisting of pledges and deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of bids, tenders, bids, trade or government contracts and leases (other than Debtfor Indebtedness), licenses, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))bonds, performance bonds, or arising as a result of progress payments under government contracts, completion bonds and other obligations of a like nature kind, in each case incurred in the Ordinary Course ordinary course of Businessbusiness;
(f) Liens arising as a matter easements, servitudes, rights-of-way and other rights, exceptions, reservations, conditions, limitations, covenants and other restrictions that do not materially interfere with the operation, value or use of law in the Ordinary Course of Business which are subject to Third Party Agreementsproperties affected thereby;
(g) Liens arising as any Lien on any asset (including a matter capital lease) securing Indebtedness incurred or assumed for the purpose of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, financing all or any Property part of a Credit Party the cost of acquiring such asset, provided that such Lien attaches to such asset concurrently with or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive within 180 days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) after the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealacquisition thereof;
(h) easements, rights-of-way, restrictions, covenants Liens securing judgments for the payment of money not constituting an Event of Default under Section 11(g) or other agreements of record, survey and other non-monetary title exceptions and other similar charges appeal or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountssurety bonds related to such judgments;
(i) Liens existing on (A) acquired Property securing Debt permitted under Section 10.1(f) any property or (B) Property acquired pursuant asset of any Person that becomes a Restricted Subsidiary of the MLP or the Issuer after the date of this Agreement prior to the time such Person becomes a Permitted AcquisitionRestricted Subsidiary; provided that (i) such Liens (x) are Lien is not incurred created in contemplation of or in connection with, or in anticipation of, a with such Person becoming a Subsidiary or the acquisition of the Property subject to Restricted Subsidiary, (ii) such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do Lien shall not attach apply to any other Property property or assets of the Credit Parties MLP, the Issuer or any Restricted Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date such Person becomes a Restricted Subsidiary and any renewals, extensions and modifications (but not increases) thereof;
(j) conventional provisions contained in contracts or agreements affecting properties under which the Issuer, the MLP or a Restricted Subsidiary is required immediately before the expiration, termination or abandonment of their Subsidiaries a particular property to reassign to such Person’s predecessor in title all or a portion of such Person’s rights, titles and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)interests in and to all or a portion of such property;
(k) So long as any Lien consisting of (i) landlord’s liens under leases to which the Intercreditor Agreement MLP, the Issuer or any of its Restricted Subsidiaries is a party or other Liens on leased property reserved in effectleases thereof for rent or for compliance with the terms of such leases (other than Liens securing Indebtedness), Liens (ii) rights reserved to or vested in favor any municipality or governmental, statutory or public authority to control or regulate any property of the Term Loan Agent MLP, the Issuer or any of its Restricted Subsidiaries, or to use such property in any manner which does not materially impair the use of such property for the purposes for which it is held by the MLP, the Issuer or any such Restricted Subsidiary, (iii) obligations or duties to any municipality or public authority with respect to any franchise, grant, license, lease or permit and the Debt permitted under Section 10.1(b)(i)rights reserved or vested in any governmental authority or public utility to terminate any such franchise, grant, license, lease or permit or to condemn or expropriate any property, and (iv) zoning laws and ordinances and municipal regulations;
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure on the Equity Interests in, or Indebtedness or other obligations of, an Unrestricted Subsidiary securing the payment of customs duties a Project Financing or securing Equity Contribution Obligations as permitted by paragraphs (a)(i) and (a)(iii) of the definition of “Non-Recourse” set forth in connection with the importation of GoodsSchedule B;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lesseeLiens that ratably secure the Notes and other Indebtedness, subject to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease customary collateral trust or similar agreement arrangements and execution by the Purchasers (or statute);their agent) and the other necessary parties of appropriate documentation governing such arrangement; and
(n) Liens solely securing Indebtedness in an aggregate principal amount not to exceed, at the time of incurrence of such Indebtedness, an amount equal to 10% of Consolidated Net Tangible Assets as of the most recent Quarter-End Date for which financial statements have been delivered pursuant to Section 7.1(a) or Section 7.1(b). Liens permitted by this Section 10.1 may also extend to products and proceeds (including dividends, distributions, interest and like payments on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intentrespect to, and insurance and condemnation proceeds and rental, lease, licensing and similar proceeds) of, and property evidencing or embodying, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords constituting rights or other like Liens general intangibles directly relating to or arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection with, or as part out of, the financing thereof) from time and accessions and improvements to, such property subject to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)such Liens.
Appears in 2 contracts
Sources: Note Purchase Agreement (El Paso Pipeline Partners, L.P.), Note Purchase Agreement (El Paso Pipeline Partners, L.P.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Closing Date and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of property covered thereby is not changed other than (A) after acquired property that is affixed or incorporated into the fixed asset(sproperty covered by such Lien and (B) which were the subject thereof proceeds and products thereof, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges Taxes that are (i) not yet delinquent due or (ii) being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted and for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations which are business (i) which are not due overdue for a period of more than thirty (30) days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) Liens arising incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits and other Liens to secure the performance of bids, trade contracts and leases (other than Indebtedness), tenders, statutory obligations, surety bonds (other than bonds related to judgments or litigation), leases, performance bonds, government contracts and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; and
(j) licenses (including licenses of intellectual property), sublicenses, leases or subleases granted to third parties in the ordinary course of business not interfering with the business of the Borrower or any Restricted Subsidiary in any material respect;
(k) Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods;
(l) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(m) normal and customary rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other materials which are depository institutions;
(n) Liens securing Acquired Indebtedness, provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or Subsidiary located on such Indebtedness and (ii) such Liens existed prior to the premises of such Credit Party or Subsidiary (but applicable Permitted Acquisition and were not incurred in connection with, or as part in anticipation or contemplation of, the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofapplicable Permitted Acquisition;
(ro) Liens on property of a collection bank arising Restricted Subsidiaries that are Non-U.S. Subsidiaries securing Indebtedness of such Restricted Subsidiary under Section 4-210 of the UCC on items in the course of collection7.03(v);
(sp) modification, replacement, renewal or extension of any Lien permitted by clauses (b), (i) or (n) of this Section 7.01; provided that (i) the Lien does not extend to any additional property, other than (A) after acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, and (ii) the modification replacement, renewal or extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03 (to the extent constituting Indebtedness) (q) Liens granted pursuant to secure Debt permitted under Section 10.1(many Loan Document securing (x) in connection with the financing of insurance premiumsSecured Cash Management Agreements and (y) Secured Swap Contracts;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 2 contracts
Sources: Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Property, except the following (collectivelyincome or profits, “Permitted Liens”):whether now owned or hereafter acquired, except:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxestaxes, assessments or other governmental charges not yet more than 30 days delinquent or which are being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law contested in good faith and in the Ordinary Course of Business, but only by appropriate proceedings if (i) payment adequate reserves with respect thereto are maintained on the books of Holdco, Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) all such Liens, individually and in the aggregate, are not reasonably expected to have a Material Adverse Effect;
(b) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations secured thereby is which are not yet due delinquent or is which are bonded or which are being Properly Contested; contested in good faith and by appropriate proceedings if (i) adequate reserves with respect thereto are maintained on the books of Holdco, Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) such Liens do not not, in the aggregate, materially impair the value or use of the Property or materially impair of Holdco, Borrower and the Subsidiaries, taken as a whole, in the operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debttheir business;
(ec) pledges or deposits made and Liens consisting of deposits or pledges made arising in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security legislation or other similar legislation, or insurance;
(d) deposits to secure the performance of bids, tenders, bidstrade or government contracts, trade contracts and leases (other than Debt)leases, licenses, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature (in each case, other than for borrowed money) incurred in the Ordinary Course ordinary course of Businessbusiness, deposits and/or escrow accounts in respect of divestitures that are otherwise permitted hereunder, in each case for amounts not yet delinquent or, to the extent such amounts are so delinquent, such amounts are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted if (i) adequate reserves with respect thereto are maintained on the books of Holdco, Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) in the case of any such Lien against any of the Collateral, to the extent such Liens are not imposed by law, such Lien shall in no event encumber any Collateral other than cash and Cash Equivalents;
(e) easements (including, without limitation, reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, minor encroachments, and other similar minor encumbrances defects or irregularities in title which do not, individually or in the aggregate materially detract from the value or marketability of the Real Property to which it relates or, individually or in the aggregate, materially interfere with or adversely affect in any material respect the ordinary conduct of the business of Borrower and its Subsidiaries on the Real Property subject thereto or which are set forth in the title insurance policy delivered with respect to the Mortgaged Properties;
(f) Liens securing the Secured Obligations;
(g) Liens securing Indebtedness permitted by Sections 6.01(f); provided that no such Lien incurred in connection with such Indebtedness shall extend to or cover other Property other than the respective Property so acquired (except that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of equipment provided solely by such lender) and proceeds thereof, and the principal amount of Indebtedness secured by any such Lien shall at no time exceed the greater of (A) the cost of acquiring, constructing or improving such fixed or capital assets, including transaction costs incurred in connection therewith or (B) the original purchase price of such property;
(h) Liens existing on the Closing Date after giving effect to the consummation of the Transactions and set forth on Schedule 6.02(h) and any Lien granted as a replacement or substitute therefor; provided that (i) no such Lien shall extend to or cover other Property of any Loan Party other than the respective Property encumbered by such Lien on the Closing Date and proceeds thereof, (ii) no such replacement or substitute Lien shall secure Indebtedness in an aggregate amount greater than the amount secured by the replaced or substituted Lien on the Closing Date and (iii) with respect to any Mortgaged Property on the Closing Date, there shall be no Liens other than those Liens set forth on Schedule B to the applicable Mortgage and the other Permitted Encumbrances permitted to exist on the Closing Date pursuant the definition thereof;
(i) Liens on documents of title and the property covered thereby securing Indebtedness in respect of commercial letters of credit;
(j) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which Borrower or any Subsidiary has easement rights or on any Leased Property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any Real Property;
(k) leases or subleases or licenses or sublicenses with respect to the assets or properties of Borrower or any Subsidiary, in each case, entered into in the ordinary course of Borrower’s or such Subsidiary’s business so long as such leases or subleases affecting Mortgaged Property (i) are subordinate in all respects to the Liens granted and evidenced by the Security Documents and, in the case of any lease or sublease entered into after the Closing Date affecting any Mortgaged Property, such lease or sublease shall also be entered into in compliance with the provisions of the applicable Mortgage and (ii) do not, individually or in the aggregate, (A) interfere in any material respect with the ordinary conduct of the business of Borrower or any Subsidiary or (B) materially impair the use (for its intended purposes) or the value of the assets or property subject thereto;
(l) Liens on goods (and proceeds thereof) financed with drawings under commercial letters of credit securing reimbursement obligations in respect of such commercial letters of credit (other than letters of credit issued in contravention of this Agreement);
(m) interests of lessors under leases, operating leases, subleases and UCC financing statements in respect thereof;
(n) interests of a licensor or lessor under a license or sublicense agreement or lease;
(o) precautionary UCC financing statements filed against a Loan Party as lessee or sublessee or consignee;
(p) Liens securing Indebtedness permitted pursuant to (i) Section 6.01(e) not to exceed $5.0 million and (ii) Section 6.01 (m);
(q) judgment Liens with respect to judgments that do not otherwise result in or cause an Event of Default under Section 7.01(f);
(r) Liens in favor of customs and revenues authorities securing payment of custom duties in connection with the import of goods;
(s) Liens granted on the Collateral to secure Indebtedness permitted pursuant to Section 6.01(a); provided that such Liens are subordinated to the Liens securing the Secured Obligations in accordance with the terms of the Intercreditor Agreement;
(t) Liens against the landlord’s interest in any Real Property with respect to which any Loan Party holds an interest pursuant to a Lease; provided, however, that (i) the landlord is not a Loan Party and (ii) in the case of each such Lease which shall be subject to a Mortgage, each holder of a mortgage lien against the landlord’s interest shall have entered into a non-disturbance agreement in form and substance reasonably acceptable to the Collateral Agent, except to the extent that after using commercially reasonable efforts to do so the Loan Parties and such lienholder were unable to enter such an agreement;
(u) (i) banker’s liens and rights of setoff relating to deposit accounts or that otherwise arise under Article 4 of the UCC on items in connection (and documents and proceeds related thereto), (ii) Liens relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or (iii) Liens arising as a matter of law in the Ordinary Course relating to purchase orders and other agreements entered into with customers of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, Borrower or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)business;
(nv) (i) deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Borrower or any Subsidiary;
(w) any Lien existing on any property or asset prior to the acquisition thereof by Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Closing Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of Borrower or any Subsidiary (other than proceeds and after acquired property of any acquired Subsidiary to the extent required by the terms of any Indebtedness assumed in such acquisition and permitted pursuant to Section 6.10(n) and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals, refinancings and replacements thereof that do not increase the outstanding principal amount thereof (other than by an amount not in excess of fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof;
(x) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party Borrower or any of its the Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(oy) leases Liens on securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.06;
(z) Liens granted by any Subsidiary that is not a Loan Party in favor of Borrower or any other Loan Party in respect of real property on which facilities owned or leased Indebtedness owed by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Subsidiary; and
(uaa) other Liens securing Indebtedness or other obligations having in an aggregate amount not exceeding Five Million Dollars to exceed $15,000,000 at any one time; provided that no consensual Liens shall be permitted to exist, directly or indirectly, on any Securities Collateral ($5,000,000as defined in the Security Agreement), other than Liens granted pursuant to the Security Documents or, subject to the Intercreditor Agreement, to secure the Second Lien Obligations.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 8.01 and any renewals or extensions thereof, provided that the property covered thereby consists only of the purchase price property covered by the Liens being renewed or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition extended and any renewal or extension of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 8.03(b);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, Law or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) Liens, pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) Liens arising or deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business, and including deposits (but not Liens) related to the acquisition of property;
(g) easements, rights-of-way, covenants, consents, reservations, encroachments, variations and zoning and other similar restrictions, charges or encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) any interest or title of a lessor or sublessor and any restriction or encumbrance to which the interest or title of such lessor or sublessor may be subject that is incurred in the ordinary course of business and, either individually or when aggregated with all other Liens described in clauses (a) through (g) in effect on any date of determination, could not be reasonably expected to have a Material Adverse Effect;
(i) operating leases with respect Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.01 or securing appeal or other surety bonds related to assets which are such judgments;
(j) Liens securing Indebtedness permitted under Section 8.03(e); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rk) Liens of a collection bank arising on Mortgage Accounts and Third Party Mortgage Accounts securing Indebtedness permitted under Section 4-210 of the UCC on items in the course of collection8.03(g);
(sl) Liens granted to secure Debt on residual beneficial interests in any MSH Trust securing Indebtedness permitted under Section 10.1(m8.03(g)(iii), 8.03(i) in connection with the financing of insurance premiumsor 8.03(m);
(tm) Liens existing on securing Indebtedness the Closing Date amount of which Indebtedness shall not exceed in the aggregate at any time $10,000,000 and listed on Schedule 10.2, including Liens the book value of the property securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount such Indebtedness shall not exceeding Five Million Dollars (exceed $5,000,000)12,500,000.
Appears in 2 contracts
Sources: Credit Agreement (Walter Industries Inc /New/), Credit Agreement (Walter Industries Inc /New/)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following Liens (collectively, herein referred to as “Permitted Liens”):
(a) Liens (i) securing Indebtedness in favor respect of Administrative Agentthe Senior Secured Notes, LC Issuer, Swing Line Lender or to the extent permitted pursuant to Section 7.02(c)(i); provided that such Liens shall be subject to the provisions of the Intercreditor Agreement; and (ii) pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including for taxes, assessments or governmental levies not yet due or which are being contested in connection good faith and by appropriate proceedings diligently conducted, if adequate reserves with Permitted Purchase Money Debt) to secure a portion respect thereto are maintained on the books of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt applicable Person in connection accordance with the funding or financing of such fixed asset(s)GAAP;
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmenlandlord’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s, construction contractors’ or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 60 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qd) Liens arising from (including pledges or deposits) in connection with workers’ compensation, unemployment insurance and other social security legislation or letters of credit or guarantees issued in respect thereof, in each case incurred in the ordinary course of business, other than any Lien imposed by ERISA;
(e) Liens (including pledges or deposits) to secure the performance of bids, tenders, trade contracts and leases (other than Indebtedness), statutory obligations, surety, stay and appeal bonds, performance bonds, governmental contracts and other obligations of a like nature or letters of credit or guarantees issued in respect thereof, in each case incurred in the ordinary course of business;
(f) (i) operating leases with respect to assets which easements, rights-of-way, restrictions (including zoning restrictions), encroachments, licenses, covenants and other similar encumbrances affecting real property which, in the aggregate, are not owned by substantial in amount, and which do not in any Credit Party case materially detract from the value of the property subject thereto or any Subsidiary and materially interfere with the precautionary UCC financing statement filings in respect thereof ordinary conduct of the business of the applicable Person and (ii) equipment other Liens or other materials which are not owned matters approved by the Administrative Agent in any Credit Party or Subsidiary located on the premises policy of such Credit Party or Subsidiary (but not title insurance issued in connection with, or as part of, with the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofMortgages;
(rg) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(h) Liens securing Indebtedness permitted under Section 7.02(f); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost of the property being acquired on the date of acquisition;
(i) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof; provided that (i) the property covered thereby is not changed in any material respect, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.02(d) and (iii) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(d);
(j) licenses, leases or subleases entered into in the ordinary course of business granted to others not interfering in any material respect with the business of the applicable Person;
(k) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(sl) Liens granted on property or assets acquired pursuant to secure Debt an acquisition permitted under Section 10.1(mhereunder (and the proceeds thereof) or assets of any Subsidiary of the Borrower in connection existence at the time such Subsidiary is acquired pursuant to an acquisition permitted hereunder and not created in contemplation thereof;
(m) bankers’ liens, rights to setoff and credit balances with respect to deposit accounts and other Cash Equivalents and Liens encumbering customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business;
(n) Liens on insurance policies and the proceeds thereof securing the financing of the insurance premiumspremiums in respect thereto;
(to) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt incurred with Guarantee Obligations permitted under pursuant to Section 10.1(l7.02(e); and;
(up) Liens arising out of consignment or similar arrangements for the sale of goods through third parties in the ordinary course of business;
(q) other Liens securing obligations having an aggregate amount outstanding not exceeding Five Million Dollars (to exceed $5,000,000)750,000 in the aggregate.
Appears in 2 contracts
Sources: Credit Agreement (Sheridan Group Inc), Credit Agreement (Sheridan Group Inc)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor existing on the Closing Date and listed on Schedule 7.01 and any renewals, extensions or replacements thereof; provided that the property covered thereby is not increased, and with respect to any replacement Lien, the amount of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentIndebtedness secured by such Lien shall not be increased;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Businessfor taxes, but only if (i) payment of the obligations secured thereby is assessments or governmental charges or levies not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) Liens of carriers, warehousemen, mechanics, materialmen, workmen and repairmen or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted;
(d) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age benefits, other social security obligations, taxes, assessments, statutory obligations and other similar charges, other than any Lien imposed by ERISA;
(e) (i) deposits to secure the performance of bids, tenders, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance and return of money bonds, agreements with utilities and other obligations of a like nature incurred in the ordinary course of business (including in each case deposits and/or Liens securing letters of credit issued in lieu of any such cash deposits), and (ii) other cash deposits required to be made in the ordinary course of business, including those made to secure health, safety and environmental obligations in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qg) Liens arising from securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments), which judgments do not constitute an Event of Default under Section 8.01(h), and the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any such legal proceeding;
(h) Liens securing Indebtedness permitted under Section 7.03(c); provided that (i) operating leases with respect to assets which are such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment with respect to Indebtedness permitted by Section 7.03(c)(i) such Liens attach to such property concurrently with or other materials which are not owned by any Credit Party or Subsidiary located on within ninety days after the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect acquisition thereof;
(ri) leases or subleases granted to others not interfering in any material respect with the business of any Loan Party or any Subsidiary;
(j) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(k) normal and customary rights of setoff and other Liens upon deposits of cash and securities in favor of banks, brokers or other financial institutions;
(l) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(m) any Lien existing on property (and the proceeds thereof) existing at the time of its acquisition and any modification, replacement, renewal or extension thereof; provided that such Lien was not created in contemplation of such acquisition;
(n) Liens incurred or assumed in the ordinary course on cash, marketable securities, real estate loans (including related purchase commitments) commodities or other financial products to secure securities lending transactions at Regulated Subsidiaries and other stock lending transactions, repurchase agreements, and other collateralized financing transactions at Subsidiaries;
(o) pledges of securities or commodity positions and exchange memberships in the ordinary course of business;
(p) deposits or securities with commodity or securities exchanges or clearing organizations, or with other exchanges or markets, in each case in the ordinary course of business;
(q) Liens in favor of customers of Broker-Dealer Subsidiaries arising in the ordinary course of business and Liens securing indebtedness of Broker-Dealer Subsidiaries in respect of customer funds in the ordinary course of business;
(r) Liens securing Indebtedness permitted under Section 7.03(i);
(s) Liens on cash and marketable securities granted to secure Debt permitted by Berkeley Point in favor of ▇▇▇▇▇▇ ▇▇▇ under Section 10.1(m) the Delegated Underwriting and Servicing Program and/or ▇▇▇▇▇▇▇ Mac under the Targeted Affordable Housing Program in connection with respect of loss sharing arrangements, in each case in the financing ordinary course of insurance premiums;business; and
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing Indebtedness or other obligations having in an aggregate principal amount not exceeding Five Million Dollars (to exceed at any one time, the difference of $5,000,00040,000,000 less any Indebtedness incurred pursuant to Section 7.03(j).
Appears in 2 contracts
Sources: Credit Agreement (BGC Partners, Inc.), Revolving Credit Agreement (BGC Partners, Inc.)
Liens. Create Each Borrower shall not, and shall not permit any of its Subsidiaries to, create, assume, incur, or suffer permit to exist any Lien upon any of its Propertyproperty (including Hydrocarbon Interests, except the following (collectivelyaccounts receivable and Equity Interests in Subsidiaries or other Persons), “Permitted Liens”):whether now owned or hereafter acquired, except:
(a) Liens in favor securing payment of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentthe Obligations;
(b) purchase money Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion Indebtedness of the purchase price or financing thereof so long as such Liens are type permitted under Section 8.1(b) incurred not more than ten (10) days after the later of (i) to finance the acquisition of the specific fixed asset(sassets or equipment; provided that (w) which were the subject thereof and such Lien is created within sixty (ii60) days of the incurrence of Permitted Purchase Money Debt in connection with such Indebtedness, (x) the funding principal amount of the Indebtedness secured thereby does not exceed the lesser of the cost or financing the fair market value of such fixed asset(s)assets or equipment, (y) such Lien encumbers only the fixed assets or equipment that are financed by such Indebtedness and does not attach to any other assets of such Borrower or any of its Subsidiaries and (z) the amount of Indebtedness secured thereby is not increased;
(c) Liens for Taxestaxes, assessments or other governmental charges or levies not yet at the time delinquent (provided that no foreclosure, sale or other enforcement proceedings in respect thereof have been initiated) or that are being Properly Contesteddiligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside;
(d) carrier’s, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ or other similar Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter by operation of law and in the Ordinary Course ordinary course of Business, but only if (i) payment business in respect of the obligations secured thereby is that are not yet due or is that are being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; diligently contested in good faith by appropriate proceedings and (iii) such Liens do not secure Debtfor which adequate reserves in accordance with GAAP shall have been set aside;
(e) Liens consisting in favor of deposits or pledges made operators and non-operators under joint operating agreements arising in the Ordinary Course ordinary course of Business business to secure amounts owing by such Borrower or any of its Subsidiaries that are not yet due or that are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside;
(f) obligations of such Borrower or any of its Subsidiaries in respect of royalty payments, overriding royalty payments, net profit interests, production payments, reversionary interests, calls on production, preferential purchase rights and other deductions from the proceeds of Hydrocarbon production, that do not secure Indebtedness for borrowed money and that are taken into account in computing the net revenue interests and working interests of such Borrower or any of its Subsidiaries warranted in the Security Documents;
(g) Liens created by, or arising under any Applicable Law (in contrast with Liens voluntarily granted) in the ordinary course of business of such Borrower or any of its Subsidiaries in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and insurance, employers’ health tax or other types of social security or similar legislationstatutory obligations that secure amounts that are not yet due or that are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside;
(h) Liens arising under operating agreements, unitization and pooling agreements and orders, farm-out agreements, gas balancing agreements and other related agreements, in each case that are customary in the oil, gas and mineral production business and that are entered into by such Borrower or any of its Subsidiaries in the ordinary course of business that are taken into account in computing the net revenue interests and working interests of such Borrower or any of its Subsidiaries warranted in the Security Documents, to the extent that any such Lien does not materially detract from the value of the property encumbered by such Lien or materially impair the use thereof in the operation of the business of such Borrower or any of its Subsidiaries;
(i) Liens arising pursuant to deposits to secure the performance of tenders, bids, trade contracts and leases (other than Debt)contracts, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bondsHydrocarbon Licenses, or arising as a result of progress payments under government contracts, performance bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness of such Borrower or any of its Subsidiaries;
(fj) bankers’ Liens, rights of setoff and other similar Liens arising as a matter existing solely with respect to cash and temporary investments on deposit in one or more accounts maintained by such Borrower or any of law its Subsidiaries (other than the Collection Accounts), in each case granted in the Ordinary Course ordinary course of Business business in favor of the bank or financial institution with which such accounts are subject maintained, securing amounts owing to Third Party Agreementssuch bank or financial institution with respect to cash management and operating account arrangements; provided that in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(gk) judgment Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty forty-five (2045) consecutive days after the entry thereof or being Properly Contested; with respect to which execution has been stayed or the payment of which is covered in full (iisubject to a customary deductible) such Liens are at all times subordinate to Administrative Agent’s Liens; by insurance maintained with responsible insurance companies and (iii) the execution or enforcement that do not otherwise result in an Event of such Liens is and continues to be effectively stayed and bonded on appealDefault under Section 9.1(g);
(hl) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions zoning restrictions and other similar charges encumbrances, and minor defects in the chain of title that are customarily accepted in the oil and gas financing industry, none of which materially detracts from the value of the property encumbered thereby or encumbrances on Real Estate, which do not interfere with materially impairs the ordinary course use thereof in the operation of the business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties Borrower or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goodsits Subsidiaries;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lesseeLiens, to the extent permitted hereunderif any, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in favor of the ordinary course LC Issuer to cash collateralize or otherwise secure the obligations of business or sublease or similar agreement or statute);an LC Participant that is a Delinquent Lender to fund risk participations hereunder; and
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries specified in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books Item 8.2 of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)Disclosure Schedule.
Appears in 2 contracts
Sources: Credit Agreement (Transatlantic Petroleum Ltd.), Credit Agreement (Transatlantic Petroleum Ltd.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction any financing statement that names such Credit Party or any of its Subsidiaries as debtor, or sign or suffer to exist any security agreement or other document or instrument authorizing any secured party thereunder to file such financing statement, or assign any accounts or other right to receive income, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 4.8(b) to secure a portion of the purchase price and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided, that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount of Permitted Purchase Money Debt in connection the obligations secured by such Liens is not increased, (iii) none of the Credit Parties or their Subsidiaries shall become a new direct or contingent obligor with respect to the funding obligations secured by such Liens unless otherwise permitted by this Agreement and (iv) any renewal or financing extension of such fixed asset(sthe obligations secured or benefited thereby is permitted by Section 6.2(c)(ii);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness with respect to sums that are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, but only if (i) payment adequate reserves with respect thereto are maintained on the books of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or other than any Lien imposed by ERISA;
(f) deposits to secure the performance of tenders, bids, trade contracts and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges or encumbrances on Real Estateaffecting real property which either exist as of the Closing Date or, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course conduct of the business of the Credit Parties and their respective Subsidiariesapplicable Person;
(ih) normal and customary rights Liens securing judgments for the payment of setoff upon deposits in favor money not constituting an Event of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and Default under subsection 7.1(h) or securing appeal or other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountssurety bonds related to such judgments;
(i) Liens securing Indebtedness permitted under subsection 6.2(c)(iv) or (vi); provided, that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition and (Aiii) with respect to Capital Leases, such Liens do not at any time extend to or cover any assets other than the assets subject to such Capital Leases;
(j) Liens existing on any specific fixed asset at the time of its acquisition thereof by the Borrower or any Subsidiary thereof or existing on property or assets of a Person (other than any Stock and Stock Equivalents in any Person) at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower or any Subsidiary Guarantor; provided, that any such Lien was not created in contemplation of such acquisition, merger, consolidation or investment and does not extend to any assets other than the asset acquired Property securing Debt by the Borrower or such Subsidiary of the Borrower or the assets of the Person merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary; and provided, further, that any Indebtedness or other obligations secured by such Liens shall otherwise be permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)6.2;
(k) So long as the Intercreditor Agreement is in effectbanker’s liens, rights of setoff and other similar Liens in favor of the Term Loan Agent existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Debt permitted under Section 10.1(b)(i)Borrower or its Subsidiaries;
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a licensor, sublicensor, lessor or sub-lessor sublessor with respect to any assets under any license or lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease agreement entered into in the ordinary course of business; provided, that the same (i) do not in any material respect interfere with the business of the Borrower or sublease its Subsidiaries or similar agreement materially detract from the value of the relative assets of the Borrower or statute)its Subsidiaries and (ii) are subject and subordinate to any Lien on such assets pursuant to the Collateral Documents;
(m) licenses, sublicenses, leases or subleases with respect to any assets granted to third Persons in the ordinary course of business; provided, that the same (i) do not in any material respect interfere with the business of the Borrower or its Subsidiaries or materially detract from the value of the relative assets of the Borrower or its Subsidiaries and (ii) are subject and subordinate to any Lien on such assets pursuant to the Collateral Documents;
(n) Liens solely on precautionary filings of financing statements under the Uniform Commercial Code of any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made applicable jurisdictions in respect of operating leases entered into by any Credit Party the Borrower or any of its Subsidiaries in connection with any letter the ordinary course of intent, or purchase agreement permitted hereunder;business; and
(o) leases other Liens securing obligations outstanding in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect an aggregate amount not to obligations which are (i) not due or (ii) Properly Contestedexceed $500,000; provided, that no Lien has been filed with respect thereto or, if any such Lien may be granted when any payment Default or any Event of Default shall have been filed, a stay of enforcement of any such Lien shall occurred and be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)continuing.
Appears in 2 contracts
Sources: Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or revenues, whether now owned or hereafter acquired, except for the following (collectively, the “Permitted Liens”):
(a) Liens pursuant to any Loan Document or otherwise in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentthe Lender;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Closing Date and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(b);
(c) Liens for Taxes, assessments or other governmental charges Taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Statutory Liens (other than Liens for Taxes or imposed under ERISA) arising such as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are not overdue for a period of more than thirty (i30) not due days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person; provided that a reserve or other appropriate provision shall have been made therefor;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) Liens arising incurred or deposits made to secure the performance of bids, trade contracts, licenses and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.02(c); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition.
(j) (i) licenses, sublicenses, leases or subleases granted to other materials which are persons in the ordinary course of business not owned interfering in any material respect with the ordinary conduct of the business of the Loan Parties or (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Credit Loan Party or Subsidiary located on the premises of by a statutory provision, to terminate any such Credit Party lease, license, franchise, grant or Subsidiary (but not in connection withpermit, or to require annual or periodic payments as part of, a condition to the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect continuance thereof;
(rk) Liens arising solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of setoff or similar rights and remedies as to deposit accounts or to other funds maintained with a depository institution;
(l) licenses of intellectual property granted by any Loan Party in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Loan Parties;
(m) filing of UCC financing statements solely as a precautionary measure in connection with operating leases;
(n) Liens of a collection collecting bank arising in the ordinary course of business under Section 4-210 of the UCC on covering only the items in the course of collectionbeing collected upon;
(so) Liens granted to secure Debt good faith deposits required in connection with any investment transaction permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)7.03; and
(up) other Liens to the extent constituting a Lien, escrow arrangements securing indemnification obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)associated any investment transaction permitted under Section 7.03.
Appears in 2 contracts
Sources: Credit Agreement (Hackett Group, Inc.), Credit Agreement (Hackett Group, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or created under any other Loan Document;
(b) Liens securing fixed existing on the date of this Agreement and listed on Schedule 7.01, and extensions, renewals and replacements thereof to the extent such extensions, renewals and replacements secure only the obligations secured by such original Liens and extend only to the assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as covered by such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)original Liens;
(c) Liens imposed by Law for Taxes, assessments or other governmental charges Taxes (i) not yet delinquent due or (ii) which are being Properly Contestedcontested in compliance with Section 6.04;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Business, but only if (i) payment of the obligations secured thereby is business which are not yet due and payable or the payment of which is being Properly Contested; (ii) such Liens do not materially impair at the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debttime required;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or other than any Lien imposed by ERISA or, with respect to any Plan, the Code;
(f) deposits to secure (or obtain letters of credit that secure) the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))bonds, appeal bonds, bids, leases, performance bonds, purchase, construction or arising as a result of progress payments under government contracts, sales contracts and other obligations similar obligations, in each case not incurred or made in connection with the borrowing of a like nature incurred in money, the Ordinary Course obtaining of Business;
(f) Liens arising as a matter advances or credit or the payment of law in the Ordinary Course deferred purchase price of Business which are subject to Third Party Agreementsproperty;
(g) Liens arising as a matter of law by virtue of a judgment leases or judicial order against any Credit Party or Subsidiarysubleases granted to others, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions (including zoning restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions ) and other similar charges encumbrances affecting real property which, in the aggregate could not result in a Material Adverse Effect;
(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or encumbrances on Real Estatesecuring appeal or other surety bonds related to such judgments, which do unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not interfere with have been discharged within 60 days after the ordinary course expiration of business of the Credit Parties and their respective Subsidiariesany stay;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens securing leases;
(j) Liens (i) of a collecting collection bank arising under Section 4-210 of the Uniform Commercial Code on Payment Items items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes; and (iii) in favor of a banking or other financial institution arising as a matter of law or under Section 10.1(f)(ii)customary general terms and conditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry, provided that (1) the account containing such deposits is not a dedicated cash collateral account and is not subject to restrictions against access by the Borrower in excess of those set forth by regulations promulgated by the FRB, and (2) the account containing such deposits is not intended by the Borrower to provide collateral to the depository institution;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor on cash of the Term Loan Agent Subsidiaries on deposit with respect any Cash Pool Bank securing Cash Pool Obligations owed to the Debt permitted under Section 10.1(b)(i)such Cash Pool Bank;
(l) Liens in favor of the New Notes Trustee deemed to exist on any proceeds of Refinancing Notes held in a restricted deposit account designated for such purpose;
(m) Liens on the assets of Securitization Finance Subsidiaries, provided that such Liens shall only secure obligations with respect to a Permitted Securitization Financing;
(n) Licenses or sublicenses granted to others in the ordinary course of business;
(o) Liens (i) in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods in the ordinary course of business or (ii) on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;
(mp) Liens on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections 7.02 to be applied against the purchase price for such Investment;
(q) Liens existing on property at the time of its acquisition or existing on the property of any Person that becomes a Subsidiary after the date hereof; provided, that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, and (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof);
(r) Liens arising from precautionary UCC financing statement filings regarding leases entered into by the Borrower or any Subsidiary in the ordinary course of business;
(s) any interest or title of a lessor lessor, sublessor, licensee, sublicensee, licensor or sub-lessor sublicensor under any lease lease, sublease, license or sublicense agreement (including software and other technology licenses) in the ordinary course of Real Estate made business;
(t) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by any Credit Party the Borrower or any Subsidiary in the ordinary course of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor business;
(whether contractually granted in such lease u) deposits made in the ordinary course of business or sublease or similar agreement or statute)to secure liability to insurance carriers;
(nv) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any receipt of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising progress payments and advances from customers in the Ordinary Course ordinary course of Business with respect business to obligations which are (i) not due or (ii) Properly Contested; provided, that no the extent same creates a Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary related inventory and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect proceeds thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(sw) Liens granted to secure Debt permitted under Section 10.1(m) in connection with Swap Contracts in the financing ordinary course of insurance premiums;
(t) Liens existing on business for the Closing Date purpose of directly mitigating risks associated with liabilities, commitments, investments, assets or property held or reasonably anticipated by the Borrower or its Subsidiaries, or changes in the value of securities issued by the Borrower or its Subsidiaries, and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)not for purposes of speculation or taking a “market view”; and
(ux) Liens not expressly permitted by clauses (a) through (k) and (n) through (w) above securing or deemed to exist in connection with Priority Indebtedness permitted under Section 7.03; provided that such Liens shall not secure any other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000other than principal, interest, fee, expense reimbursement, indemnity and similar obligations associated with such permitted Priority Indebtedness).
Appears in 2 contracts
Sources: Credit Agreement (Pall Corp), Credit Agreement (Pall Corp)
Liens. Create The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Closing Date and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of the fixed asset(s) which were the subject thereof property covered thereby is not increased and (ii) any Lien securing Indebtedness in excess of (x) $5,000,000 individually or (y) $20,000,000 in the incurrence of Permitted Purchase Money Debt aggregate (when taken together with all other Liens outstanding in connection with reliance on this proviso that are not set forth on Schedule 8.01) shall only be permitted to the funding or financing of extent such fixed asset(s)Lien is listed on Schedule 8.01;
(c) Liens (other than Liens imposed under ERISA) for Taxestaxes, assessments or other governmental charges or levies not yet delinquent or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmenlandlord’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are not overdue for a period of more than forty-five (i45) not due days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the applicable Persons;
(h) Liens arising from securing judgments (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 9.01(h);
(i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings Liens securing purchase money Indebtedness (including obligations in respect thereof of capital leases and Synthetic Lease Obligations) hereafter incurred to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof; provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, together with any accessions thereof; provided that in the event such Indebtedness is owed to any Person that has financed more than one purchase of any fixed or capital assets, such Liens may secure all such purchase money obligations and may apply to all such fixed or capital assets financed by such Person under such financings; and (ii) equipment such Liens attach to such property concurrently with or other materials which are not owned by any Credit Party or Subsidiary located on within ninety (90) days after the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect acquisition thereof;
(rj) leases, subleases and licenses granted to others not interfering in any material respect with the business of the Borrower or any Subsidiary;
(i) any interest of title of a third party lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement, (ii) Liens or restrictions that the interest or title of such lessor may be subject to, or (iii) subordination of the interest of the lessee under such lease to any Lien or restriction referred to in the preceding clause (ii);
(l) Liens on securities deemed to exist in connection with repurchase agreements entered into by the Borrower or its Subsidiaries;
(i) normal and customary rights of setoff upon, and banker’s liens granted in respect of, deposits of cash in favor of banks or other depository institutions, and (ii) customary Liens granted in the ordinary course of business in connection with any Banking Services Agreement; provided that no Liens granted in connection with a Banking Services Agreement shall extend to specific cash collateral pledged by the Borrower or any Subsidiary to support such Banking Services Agreement;
(n) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(so) Liens granted on assets of Foreign Subsidiaries that do not secure Indebtedness;
(p) Liens on assets of a Person (and its Subsidiaries) existing at the time such Person is acquired or merged with or into or consolidated with the Borrower or any of its Subsidiaries (and not created in anticipation or contemplation thereof); provided that, such Liens do not extend to secure Debt permitted under Section 10.1(massets not subject to such Liens at the time of acquisition (other than improvements thereon);
(q) Liens on cash and cash equivalents arising in connection with the financing defeasance, discharge or redemption of insurance premiumsIndebtedness;
(r) Liens in favor of a trustee pursuant to an indenture relating to any Indebtedness permitted by this Agreement to the extent such Liens (i) only secure customary compensation and reimbursement obligations of such trustee and (ii) are limited to the cash held by such trustee (excluding cash held in trust for the payment of such Indebtedness);
(s) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(t) Liens existing arising by operation of law in favor of issuers of letters of credit in the documents presented under a letter of credit;
(u) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens and rights reserved in any lease for rent or for compliance with the terms of such lease;
(v) Liens on cash relating to escrows established for an adjustment in purchase price or liabilities or indemnities for Dispositions, to the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt extent such Dispositions are permitted under Section 10.1(l)hereby; and
(uw) other Liens; provided, that, the sum of (i) the aggregate principal amount of the outstanding obligations secured by Liens securing obligations having an permitted under this clause (w), plus (ii) the aggregate outstanding principal amount of Indebtedness of Subsidiaries permitted by Section 8.03(i) shall not exceeding Five Million Dollars ($5,000,000)at any time exceed 15% of Consolidated Net Tangible Assets, determined as of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent in accordance with Section 7.01.
Appears in 2 contracts
Sources: Loan Agreement (Cadence Design Systems Inc), Credit Agreement (Cadence Design Systems Inc)
Liens. Create Create, incur or suffer to exist any Lien upon on any of its Propertythe assets, except rights, revenues or property, real, personal or mixed, tangible or intangible, whether now owned or hereafter acquired, of Borrower or any Subsidiary, other than the following (collectively, the “Permitted Liens”):
(ai) Liens for taxes not delinquent or for taxes being contested in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentgood faith by appropriate proceedings and as to which adequate financial reserves have been established on its books and records;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or any Lien imposed under by ERISA) arising as a matter of law created and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease maintained in the ordinary course of business which are not material in the aggregate, and which would not constitute or sublease result in a Material Adverse Event, and which constitute (A) pledges or deposits under worker’s compensation laws, unemployment insurance laws or similar agreement legislation, (B) good faith deposits in connection with bids, tenders, contracts or statute)leases to which Borrower is a party for a purpose other than borrowing money or obtaining credit, including rent security deposits, (C) Liens imposed by law, such as those of carriers, warehousemen and mechanics, if payment of the obligation secured thereby is not yet due, and (D) pledges or deposits to secure public or statutory obligations of Borrower or a Subsidiary, or surety, customs or appeal bonds to which Borrower or a Subsidiary is a party;
(niii) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made affecting real property owned by any Credit Party Borrower or any of its Subsidiaries Subsidiary which constitute minor survey exceptions or defects or irregularities in connection with any letter of intenttitle, minor encumbrances, easements or reservations of, or purchase agreement permitted hereunderrights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of such real property; provided, however, that all of the foregoing, in the aggregate, do not at any time materially detract from the value of said properties or materially impair their use in the operation of the businesses of the Borrower or any Subsidiary;
(oiv) leases each Lien described in respect Schedule 7.02(e) may be suffered to exist upon the same terms as those existing on the date hereof, but no extension or renewal thereof shall be permitted except for a refinancing in the ordinary course of real property on which facilities owned business for an amount not in excess of the original amount subject to such Lien;
(v) Liens arising out of judgments or leased by any Credit Party awards against the Borrower or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business Subsidiary with respect to obligations which are (i) not due the Borrower or (ii) Properly Contestedsuch Subsidiary shall be prosecuting an appeal or proceeding for review and with respect to which it shall have obtained a stay of execution pending such appeal or proceeding for review; provided, however, that the aggregate amount of judgments or awards, that are not insured by a financially sound and reputable insurer that has admitted liability without a reservation of rights, secured by such Liens shall not exceed $500,000 at any time outstanding;
(vi) Liens on or upon any property of a Person existing at the time such Person shall be merged into or acquired by the Borrower or any Subsidiary pursuant to Section 7.02(f); provided, however, that no Lien has been filed with respect thereto or, if any such Lien shall (A) extend to or cover any other property of any Borrower or such Subsidiary, (B) have been filedcreated in contemplation or as a result of such merger or acquisition, and (C) secure Indebtedness assumed by Borrower or any Subsidiary in excess of $1,500,000;
(vii) purchase money Liens upon or in property of the Borrower or a stay of enforcement of any Subsidiary acquired after the Closing Date; provided, however, that no such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books extend to or cover any other property of the applicable PersonBorrower or a Subsidiary;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(sviii) Liens granted to secure Debt permitted under Section 10.1(m) solely in connection with the financing execution and delivery of insurance premiums;
(t) Liens existing on a Hedge Agreement between the Closing Date Borrower and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)a Lender or an Affiliate of a Lender; and
(uix) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)created under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (QC Holdings, Inc.), Credit Agreement (QC Holdings, Inc.)
Liens. Create or suffer to exist any Lien upon on any property or asset of the Company or any of its PropertySubsidiaries whether now owned by it or hereafter acquired, except the following (collectively, “Permitted Liens”):
(ai) Liens in favor of Administrative the Collateral Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(bii) any Lien on any property or asset of the Company or any of its Subsidiaries existing on the date hereof and set forth in Disclosure Schedule and Liens securing any Permitted Refinancings thereof;
(iii) Liens securing fixed assets the Senior Bank Debt;
(including in connection with Permitted iv) Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of securing Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)and Liens securing any Permitted Refinancings thereof;
(cv) Liens for Taxes, assessments or other governmental charges Taxes not yet delinquent due or being Properly Contested;
(dvi) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i1) payment of the obligations secured thereby is not yet due or is being Properly Contested; , and (ii2) such Liens do not materially impair the value or use of the Property property or materially impair operation of the business of any Borrower Obligor or Subsidiary; and (iii) such Liens do not secure Debt;
(evii) Liens consisting of incurred or deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of government tenders, bids, trade contracts and leases (other than Debt)contracts, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, obligations and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiarysimilar obligations, as long as (i) such Liens are required or provided by law;
(viii) Liens securing claims or demands of materialmen, artisans, mechanics, carriers, warehousemen, landlords and other like Persons arising in existence for less than twenty the ordinary course of the Company's business and imposed without action of such parties; provided, that the payment thereof is not yet required;
(20ix) consecutive days Liens arising from judgments, decrees or being Properly Contested; (ii) attachments in circumstances which do not constitute an Event of Default hereunder so long as such Liens are at all times subordinate junior to Administrative the Collateral Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(hx) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which that do not secure any monetary obligation and do not interfere with the ordinary course Ordinary Course of business of the Credit Parties and their respective SubsidiariesBusiness;
(ixi) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection;
(xii) Liens on assets acquired in a Permitted Acquisition, securing Debt permitted by Section 7.2(a) and other similar Liens securing any Permitted Refinancings thereof;
(xiii) leases, licenses, subleases and sublicenses granted to others in the Ordinary Course of Business securing customary account fees that do not interfere in any material respect with the business of the Company and charges payable in respect of depositary accountsits Subsidiaries;
(ixiv) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred arising from UCC financing statements filed regarding operating leases entered into in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition Ordinary Course of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)Business;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(lxv) Liens in favor of customs and or revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goodsgoods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(nxvi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the Company or any of its Subsidiaries Subsidiary in connection with any letter of intent, intent or purchase agreement permitted hereundernot prohibited under this Agreement;
(oxvii) leases Liens securing attachments, appeal bonds, judgments and other similar obligations in respect connection with court proceedings or judgments that do not constitute an Event of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonDefault;
(qxviii) Liens arising from (i) operating leases with respect any interest or title of a lessor or sublessor and any lender to a lessor or sublessor under any lease or sublease not prohibited by this Agreement, in each case pertaining to assets which that are not owned by any Credit Party the Company or any Subsidiary and to the precautionary UCC financing statement filings in respect thereof and (ii) equipment extent such lease or other materials which are not owned sublease has been entered into by the Company or any Credit Party or Subsidiary located on the premises of such Credit Party 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 covering only the precautionary UCC financing statement filings in respect thereofassets so leased;
(rxix) Liens Liens, arising in the Ordinary Course of Business, (1) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, and (2) in favor of a financial institution encumbering deposits (including brokers’ Liens, bankers’ Liens, rights of set-off and other similar Liens and cash security deposits) that are within the general parameters customary in the banking industry, including with respect to deposit accounts, cash management services, including treasury, depository, overdraft, credit or debit card, purchasing cards, electronic funds transfer, automatic clearing house arrangements, cash pooling arrangements, netting services, merchant services and other similar arrangements of the Company or any Subsidiary, in each case in the Ordinary Course of Business, and not in respect of any Debt by such bank or other financial institution to the Company);
(sxx) Liens granted to secure Debt permitted under Section 10.1(m(other than any Lien imposed by ERISA) consisting of (1) pledges or deposits required in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation, (2) deposits to secure the financing performance of tenders, statutory obligations, surety, stay, customs and appeals bonds, bid bonds, indemnity obligations, operating leases, governmental contracts, trade contracts, completion bonds, performance bonds, and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), or to secure letters of credit in respect thereof, or (3) pledges to secure liability to insurance premiumscarriers, in each case, in the Ordinary Course of Business;
(txxi) Liens existing on cash securing reimbursement obligations in connection with letters of credit issued for the account of the Company or its Subsidiaries permitted pursuant to Section 7.2(a)(xiv);
(xxii) restrictions on the Closing Date Company’s ability to encumber certain of its property (other than Accounts and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted Inventory and proceeds thereof) with respect to which the Company received (or is entitled to receive) reimbursement payments under Section 10.1(l)the CEC Agreements and any rights that the applicable governmental entity enjoys in such property (other than Accounts and Inventory and proceeds thereof) under the CEC Agreements; and
(uxxiii) other Liens attached to Collateral securing obligations having in an aggregate principal amount not exceeding Five Million Dollars to exceed $2,000,000; and
($5,000,000)xxiv) Liens in favor of the Hercules Facility provided that such Liens are released and terminated in full prior to or substantially concurrently with the occurrence of the Initial Closing, provided, that no Permitted Liens in favor of third parties (other than statutory or other nonconsensual Permitted Liens or Liens in favor of the Senior Bank Debt) shall attach to Company’s or any of its Subsidiaries’ Intellectual Property.
Appears in 2 contracts
Sources: Secured Convertible Promissory Notes and Note Purchase Agreement (Proterra Inc), Note Purchase Agreement (ArcLight Clean Transition Corp.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Property, except the following (collectivelyincome or profits, “Permitted Liens”):whether now owned or hereafter acquired, except:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxestaxes, assessments or other governmental charges not yet more than 30 days delinquent or which are being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law contested in good faith and in the Ordinary Course of Business, but only by appropriate proceedings if (i) payment adequate reserves with respect thereto are maintained on the books of Holdco, Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) all such Liens, individually and in the aggregate, are not reasonably expected to have a Material Adverse Effect;
(b) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations secured thereby is which are not yet due delinquent or is which are bonded or which are being Properly Contested; contested in good faith and by appropriate proceedings if (i) adequate reserves with respect thereto are maintained on the books of Holdco, Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) such Liens do not not, in the aggregate, materially impair the value or use of the Property or materially impair of Holdco, Borrower and the Subsidiaries, taken as a whole, in the operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debttheir business;
(ec) pledges or deposits made and Liens consisting of deposits or pledges made arising in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security legislation or other similar legislation, or insurance;
(d) deposits to secure the performance of bids, tenders, bidstrade or government contracts, trade contracts and leases (other than Debt)leases, licenses, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature (in each case, other than for borrowed money) incurred in the Ordinary Course ordinary course of Businessbusiness, deposits and/or escrow accounts in respect of divestitures that are otherwise permitted hereunder, in each case for amounts not yet delinquent or, to the extent such amounts are so delinquent, such amounts are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted if (i) adequate reserves with respect thereto are maintained on the books of Holdco, Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) in the case of any such Lien against any of the Collateral, to the extent such Liens are not imposed by law, such Lien shall in no event encumber any Collateral other than cash and Cash Equivalents;
(e) easements (including, without limitation, reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, minor encroachments, and other similar minor encumbrances defects or irregularities in title which do not, individually or in the aggregate materially detract from the value or marketability of the Real Property to which it relates or, individually or in the aggregate, materially interfere with or adversely affect in any material respect the ordinary conduct of the business of Borrower and its Subsidiaries on the Real Property subject thereto or which are set forth in the title insurance policy delivered with respect to the Mortgaged Properties;
(f) Liens securing the Secured Obligations;
(g) Liens securing Indebtedness permitted by Sections 6.01(f); provided that no such Lien incurred in connection with such Indebtedness shall extend to or cover other Property other than the respective Property so acquired (except that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of equipment provided solely by such lender) and proceeds thereof, and the principal amount of Indebtedness secured by any such Lien shall at no time exceed the greater of (A) the cost of acquiring, constructing or improving such fixed or capital assets, including transaction costs incurred in connection therewith or (B) the original purchase price of such property;
(h) Liens existing on the Closing Date after giving effect to the consummation of the Transactions and set forth on Schedule 6.02(h) and any Lien granted as a replacement or substitute therefor; provided that (i) no such Lien shall extend to or cover other Property of any Loan Party other than the respective Property encumbered by such Lien on the Closing Date and proceeds thereof, (ii) no such replacement or substitute Lien shall secure Indebtedness in an aggregate amount greater than the amount secured by the replaced or substituted Lien on the Closing Date and (iii) with respect to any Mortgaged Property on the Closing Date, there shall be no Liens other than those Liens set forth on Schedule B to the applicable Mortgage and the other Permitted Encumbrances permitted to exist on the Closing Date pursuant the definition thereof;
(i) Liens on documents of title and the property covered thereby securing Indebtedness in respect of commercial letters of credit;
(j) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which Borrower or any Subsidiary has easement rights or on any Leased Property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any Real Property;
(k) leases or subleases or licenses or sublicenses with respect to the assets or properties of Borrower or any Subsidiary, in each case, entered into in the ordinary course of Borrower’s or such Subsidiary’s business so long as such leases or subleases affecting Mortgaged Property (i) are subordinate in all respects to the Liens granted and evidenced by the Security Documents and, in the case of any lease or sublease entered into after the Closing Date affecting any Mortgaged Property, such lease or sublease shall also be entered into in compliance with the provisions of the applicable Mortgage and (ii) do not, individually or in the aggregate, (A) interfere in any material respect with the ordinary conduct of the business of Borrower or any Subsidiary or (B) materially impair the use (for its intended purposes) or the value of the assets or property subject thereto;
(l) Liens on goods (and proceeds thereof) financed with drawings under commercial letters of credit securing reimbursement obligations in respect of such commercial letters of credit (other than letters of credit issued in contravention of this Agreement);
(m) interests of lessors under leases, operating leases, subleases and UCC financing statements in respect thereof;
(n) interests of a licensor or lessor under a license or sublicense agreement or lease;
(o) precautionary UCC financing statements filed against a Loan Party as lessee or sublessee or consignee;
(p) Liens securing Indebtedness permitted pursuant to (i) Section 6.01(e) not to exceed $5.0 million and (ii) Section 6.01 (m);
(q) judgment Liens with respect to judgments that do not otherwise result in or cause an Event of Default under Section 7.01(f);
(r) Liens in favor of customs and revenues authorities securing payment of custom duties in connection with the import of goods;
(s) Liens granted on the Collateral to secure Indebtedness permitted pursuant to Section 6.01(a); provided that such Liens are in accordance with the terms of the Intercreditor Agreement
(t) Liens against the landlord’s interest in any Real Property with respect to which any Loan Party holds an interest pursuant to a Lease; provided, however, that (i) the landlord is not a Loan Party and (ii) in the case of each such Lease which shall be subject to a Mortgage, each holder of a mortgage lien against the landlord’s interest shall have entered into a non-disturbance agreement in form and substance reasonably acceptable to the Collateral Agent, except to the extent that after using commercially reasonable efforts to do so the Loan Parties and such lienholder were unable to enter such an agreement;
(u) (i) banker’s liens and rights of setoff relating to deposit accounts or that otherwise arise under Article 4 of the UCC on items in connection (and documents and proceeds related thereto), (ii) Liens relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or (iii) Liens arising as a matter of law in the Ordinary Course relating to purchase orders and other agreements entered into with customers of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, Borrower or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)business;
(nv) (i) deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Borrower or any Subsidiary;
(w) any Lien existing on any property or asset prior to the acquisition thereof by Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Closing Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of Borrower or any Subsidiary (other than proceeds and after acquired property of any acquired Subsidiary to the extent required by the terms of any Indebtedness assumed in such acquisition and permitted pursuant to Section 6.10(n) and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals, refinancings and replacements thereof that do not increase the outstanding principal amount thereof (other than by an amount not in excess of fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof;
(x) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party Borrower or any of its the Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(oy) leases Liens on securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.06;
(z) Liens granted by any Subsidiary that is not a Loan Party in favor of Borrower or any other Loan Party in respect of real property on which facilities owned or leased Indebtedness owed by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Subsidiary; and
(uaa) other Liens securing Indebtedness or other obligations having in an aggregate amount not exceeding Five Million Dollars to exceed $22,000,000 at any one time; provided that no consensual Liens shall be permitted to exist, directly or indirectly, on any Securities Collateral ($5,000,000as defined in the Security Agreement), other than Liens granted pursuant to the Security Documents or, subject to the Intercreditor Agreement, to secure the First Lien Obligations.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Emdeon Inc.), Second Lien Credit Agreement (Emdeon Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the following (collectivelyUniform Commercial Code of any jurisdiction a financing statement that names the Borrower or any of its Subsidiaries as debtor, “Permitted Liens”):or sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement, or assign any accounts or other right to receive income, other than the following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or created pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 7.01(b) to secure a portion of the purchase price and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount of Permitted Purchase Money Debt the obligations secured thereby is not increased except, in connection with respect of Indebtedness, if permitted by Section 7.02(e), (iii) no additional Loan Party shall become a direct or contingent obligor of the funding obligations secured thereby and (iv) any renewal or financing extension of such fixed asset(sthe obligations secured or benefited thereby is permitted by Section 7.02(e);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) Liens arising from pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) (i) operating leases easements, rights-of-way, zoning and similar restrictions and other similar encumbrances or title defects which do not materially detract from the value of the property subject thereto or materially interfere with respect to assets which are not owned by any Credit the ordinary conduct of the business of the applicable Person, and (ii) Permitted Encumbrances; provided further, that if a Loan Party or any Subsidiary is permitted to create or suffer any of the Permitted Liens described in this Section 7.01(g) that have been or will be recorded against the applicable property after the date hereof, the Administrative Agent shall subordinate the lien of the mortgage to such Permitted Lien, promptly after any such written request by a Loan Party or Subsidiary, as applicable;
(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(i) Liens securing Indebtedness permitted under Section 7.02(g); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the principal amount of the Indebtedness secured thereby does not exceed the cost of the property being acquired, constructed or improved on the date such Indebtedness is incurred and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any Collateral or assets other than the assets subject to such Capitalized Leases;
(j) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower or on any Property acquired, in each case, in connection with any Acquisition permitted under Section 7.03(f); provided that such Liens were not created in contemplation of such Acquisition and do not extend to any assets other than those of the Person merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary and the precautionary UCC financing statement filings obligations secured thereby are permitted under Section 7.02(g);
(k) (i) Liens created by any Loan Party in respect thereof favor of any other Loan Party and (ii) equipment or other materials which are not owned Liens created by any Credit Subsidiary that is not a Loan Party in favor of the Borrower or Subsidiary located on any other Subsidiary;
(i) precautionary Uniform Commercial Code filings by lessors under operating leases covering solely the premises of property subject to such Credit Party or Subsidiary leases and (but not in connection with, or as part of, the financing thereofii) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement Uniform Commercial Code filings in respect thereofof Liens permitted under this Section 7.01;
(rm) Liens on equipment, inventory and goods, including supplies, materials and work in process, created in the ordinary course of business in favor of a collection bank arising under Section 4-210 Governmental Party by operation of Parts 32 and 45 of the UCC on items Federal Acquisition Regulation, all implementing contract provisions at Part 52, and any corresponding provisions in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) any applicable agency Federal Acquisition Regulation Supplement in connection with the financing performance by the Borrower and its Subsidiaries under a Government Contract (and not arising out of insurance premiumsa default under such Government Contract);
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(un) other Liens securing obligations having outstanding in an aggregate amount not exceeding Five Million Dollars to exceed $50,000,000; and
($5,000,000)o) Liens on any segregated and identifiable proceeds of any assets subject to a Lien permitted by the foregoing clauses of this Section 7.01 to the extent the documents governing such Liens expressly provide therefor or such Liens arise as a matter of law.
Appears in 2 contracts
Sources: Credit Agreement (Alliant Techsystems Inc), Credit Agreement (Alliant Techsystems Inc)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document[reserved];
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date of the purchase price this Agreement and listed on Schedule 10.1 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 10.3(a)(iv), and (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 10.3(a)(iv);
(c) Liens for Taxestaxes, assessments assessments, obligations under workers’ compensation or other governmental social security legislation or other requirements, charges or levies of any Governmental Authority, in each case not yet delinquent overdue, or which are being Properly Contestedcontested in good faith by appropriate proceedings diligently conducted;
(d) inchoate Liens (other than Liens for Taxes or and charges imposed under ERISA) arising as a matter of by law and incidental to construction, maintenance, development or operation of properties, or the operation of business, in the Ordinary Course ordinary course of Business, but only business if (i) payment of the obligations obligation secured thereby is not yet due overdue or if the validity or amount of which is being Properly Contested; (ii) such Liens do not materially impair contested in good faith by the value MLP, the Issuer or use any of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtits Restricted Subsidiaries;
(e) Liens consisting of pledges and deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of bids, tenders, bids, trade or government contracts and leases (other than Debtfor Indebtedness), licenses, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))bonds, performance bonds, or arising as a result of progress payments under government contracts, completion bonds and other obligations of a like nature kind, in each case incurred in the Ordinary Course ordinary course of Businessbusiness;
(f) Liens arising as a matter easements, servitudes, rights-of-way and other rights, exceptions, reservations, conditions, limitations, covenants and other restrictions that do not materially interfere with the operation, value or use of law in the Ordinary Course of Business which are subject to Third Party Agreementsproperties affected thereby;
(g) Liens arising as any Lien on any asset (including a matter capital lease) securing Indebtedness incurred or assumed for the purpose of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, financing all or any Property part of a Credit Party the cost of acquiring such asset, provided that such Lien attaches to such asset concurrently with or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive within 180 days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) after the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealacquisition thereof;
(h) easements, rights-of-way, restrictions, covenants Liens securing judgments for the payment of money not constituting an Event of Default under Section 11(g) or other agreements of record, survey and other non-monetary title exceptions and other similar charges appeal or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountssurety bonds related to such judgments;
(i) Liens existing on (A) acquired Property securing Debt permitted under Section 10.1(f) any property or (B) Property acquired pursuant asset of any Person that becomes a Restricted Subsidiary of the MLP or the Issuer after the date of this Agreement prior to the time such Person becomes a Permitted AcquisitionRestricted Subsidiary; provided that (i) such Liens (x) are Lien is not incurred created in contemplation of or in connection with, or in anticipation of, a with such Person becoming a Subsidiary or the acquisition of the Property subject to Restricted Subsidiary, (ii) such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do Lien shall not attach apply to any other Property property or assets of the Credit Parties MLP, the Issuer or any Restricted Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date such Person becomes a Restricted Subsidiary and any renewals, extensions and modifications (but not increases) thereof;
(j) conventional provisions contained in contracts or agreements affecting properties under which the Issuer, the MLP or a Restricted Subsidiary is required immediately before the expiration, termination or abandonment of their Subsidiaries a particular property to reassign to such Person’s predecessor in title all or a portion of such Person’s rights, titles and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)interests in and to all or a portion of such property;
(k) So long as any Lien consisting of (i) landlord’s liens under leases to which the Intercreditor Agreement MLP, the Issuer or any of its Restricted Subsidiaries is a party or other Liens on leased property reserved in effectleases thereof for rent or for compliance with the terms of such leases (other than Liens securing Indebtedness), Liens (ii) rights reserved to or vested in favor any municipality or governmental, statutory or public authority to control or regulate any property of the Term Loan Agent MLP, the Issuer or any of its Restricted Subsidiaries, or to use such property in any manner which does not materially impair the use of such property for the purposes for which it is held by the MLP, the Issuer or any such Restricted Subsidiary, (iii) obligations or duties to any municipality or public authority with respect to any franchise, grant, license, lease or permit and the Debt permitted under Section 10.1(b)(i)rights reserved or vested in any governmental authority or public utility to terminate any such franchise, grant, license, lease or permit or to condemn or expropriate any property, and (iv) zoning laws and ordinances and municipal regulations;
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure on the Equity Interests in, or Indebtedness or other obligations of, an Unrestricted Subsidiary securing the payment of customs duties a Project Financing or securing Equity Contribution Obligations as permitted by paragraphs (a)(i) and (a)(iii) of the definition of “Non-Recourse” set forth in connection with the importation of GoodsSchedule B;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lesseeLiens that ratably secure the Notes and other Indebtedness, subject to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease customary collateral trust or similar agreement arrangements and execution by the Purchasers (or statute);their agent) and the other necessary parties of appropriate documentation governing such arrangement; and
(n) Liens solely securing Indebtedness in an aggregate principal amount not to exceed, at the time of incurrence of such Indebtedness, an amount equal to 10% of Consolidated Net Tangible Assets as of the most recent Quarter-End Date for which financial statements have been delivered pursuant to Section 7.1(a) or Section 7.1(b). Liens permitted by this Section 10.1 may also extend to products and proceeds (including dividends, distributions, interest and like payments on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intentrespect to, and insurance and condemnation proceeds and rental, lease, licensing and similar proceeds) of, and property evidencing or embodying, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords constituting rights or other like Liens general intangibles directly relating to or arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection with, or as part out of, the financing thereof) from time and accessions and improvements to, such property subject to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)such Liens.
Appears in 2 contracts
Sources: Contribution Agreement (El Paso Pipeline Partners, L.P.), Contribution Agreement (El Paso Pipeline Partners, L.P.)
Liens. Create The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except the following (collectivelyassets or revenues, “Permitted Liens”):
(a) Liens in favor of Administrative Agentwhether now owned or hereafter acquired, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;following:
(i) Liens existing on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof; provided that (A) acquired Property securing Debt permitted under Section 10.1(f) or the property covered thereby is not changed and (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens the Debt secured or benefited thereby is not increased except by (x1) are not incurred by the utilization of any existing commitments thereunder, (2) accrued and unpaid interest and premiums thereon and (3) underwriting discounts or other amount paid, and fees, commissions, premiums (including tender premiums) and expenses (including upfront fees, original issue discount or initial yield payments) incurred, in connection withwith any such refinancing, refunding, renewal or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and extension;
(ii) Liens securing Debt permitted under Section 10.1(f)(ii)for Taxes not yet overdue or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with IFRS;
(kiii) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 60 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qiv) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and securing letters of credit, bank guarantees or similar instruments issued supporting such items;
(v) deposits to secure the performance of bids, tenders, contracts, leases (other than Debt), statutory obligations, bank guarantees or similar instruments, surety and appeal bonds, letters of credit, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(vi) easements, zoning restrictions, rights-of-way, restrictions and other similar encumbrances affecting real property which do not materially interfere with the ordinary conduct of the business of the applicable Person;
(vii) Liens arising pursuant to an order of attachment, distraint or similar legal process in connection with legal proceedings and securing judgments for the payment of money and Liens arising under ERISA or the Code with respect to a Plan not constituting an Event of Default under Section 8.01(h) or Section 8.01(i), respectively;
(viii) Liens on the property of the Borrower or any Subsidiary securing (A) any part of the cost of acquisition, development, construction, alteration, repair or improvement of such property or Debt incurred to finance any of the foregoing (including any sale and leaseback transaction), (B) Capital Leases and (C) any extension, renewal, refinancing or replacement of the Debt or obligations secured by any such Lien referred to in clauses (A) and (B); provided that (x) such Liens do not at any time encumber any property other than the property financed by such Debt and the proceeds and products thereof, accessions thereto, improvements thereon and after-acquired property that is fixed or incorporated into such property (it being understood that individual financings provided to the Borrower or any Subsidiary by any Person may be cross-collateralized to other financings of such type provided by such Person or its Affiliates) and (y) in the case of clause (A) the Debt secured thereby is either Non-Recourse Debt with respect to the Borrower and its Subsidiaries or does not exceed the cost of the property being acquired, developed, constructed, altered, repaired or improved or initial financing thereof, plus the costs incurred for delivery installation, maintenance programs and items similar to the foregoing and, fees, costs and expenses incurred in connection therewith;
(ix) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (A) such Lien is not created in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary other than proceeds and products of the property covered by such Lien, accessions thereto, improvements thereon and after-acquired property that is fixed or incorporated into such property (it being understood that individual financings provided by any Person may be cross-collateralized to other financings of such type provided by such Person or its affiliates) and (C) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof other than by an amount equal to accrued and unpaid interest, premiums (including tender premiums thereon), plus underwriting discounts or other amount paid, and fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with any such extension, renewal or replacement and by an amount equal to any existing commitments unutilized thereunder;
(x) Liens to secure obligations arising under Swap Contracts, to the extent permitted hereunder;
(xi) Liens arising out of deposits or pledges by any Subsidiary of cash, securities, portfolio investments or other property into collateral trusts, reinsurance trusts or other collateral or escrow accounts with or for the benefit of ceding companies or insurance regulators of such Subsidiary;
(xii) Liens securing Debt arising under Permitted Repo and Securities Lending Agreements; provided that no such Lien shall extend to or cover any property or assets other than the securities subject thereto;
(xiii) [reserved];
(xiv) leases, subleases, licenses and sublicenses granted to others and not interfering in any material respect with the business of the Borrower or any Subsidiary;
(xv) Liens arising from (i) operating leases Uniform Commercial Code financing statements filed with respect to assets which are not owned Operating Leases, and consignments and/or bailments arrangements;
(xvi) (A) Liens arising from pledges or deposits of cash, securities or portfolio investments made by any Credit Party Subsidiary that is a Regulated Insurance Company (x) as a condition to obtaining or maintaining any Subsidiary and licenses issued to it by any Applicable Insurance Regulatory Authority or (y) as otherwise required to comply with the precautionary UCC financing statement filings requirement of applicable insurance Laws, or (B) Liens, in case of a Regulated Insurance Company organized under Maltese laws, arising from operation of Law, in respect thereof and of its liability from its insurance business, including insurance claims;
(iixvii) equipment Liens on assets pledged, deposited into an account or other materials which are not owned by any Credit Party trust or Subsidiary located on the premises of such Credit Party or Subsidiary (but not otherwise allocated as a separate account in connection with, and securing or specifically available to satisfy obligations under, a Policy, Reinsurance Agreement or Retrocession Agreement, in an amount reasonable and as part ofrequired under the terms of such Policy, Reinsurance Agreement or Retrocession Agreement (or the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofdocumentation related thereto);
(rxviii) Liens securing Debt permitted under Section 7.01(ii);
(xix) [reserved];
(xx) rights of setoff or banker’s Liens on deposits of cash in favor of banks or other depository institutions maintained in the ordinary course of business, but not securing any Debt for borrowed money;
(xxi) Liens arising in the ordinary course of business on custody, securities or commodities accounts in favor of the entity at which such accounts are maintained, but not securing any Debt for borrowed money other than Debt incurred in connection with or to facilitate the settlement of the purchase or sale of securities in the ordinary course of business;
(xxii) Liens of a collection collecting bank arising under Section 4-210 208 of the UCC Uniform Commercial Code on items in the course of collectioncollection in the ordinary course of business;
(sxxiii) Liens granted to secure Debt permitted under Section 10.1(m) incurred in connection with the financing collection or disposition of insurance premiumsdelinquent accounts receivable in the ordinary course of business;
(txxiv) Liens existing on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposit made by the Closing Date and listed Borrower or any Subsidiary in connection with any letter of intent or acquisition agreement;
(xxv) any Lien in favor of any Credit Party securing intercompany obligations;
(xxvi) Liens that are contractual rights of setoff incurred in the ordinary course of business;
(xxvii) Liens securing the Obligations in favor of the holders of all such Obligations ratably;
(xxviii) Liens on Schedule 10.2Securitization Assets incurred in connection with a Qualified Securitization Facility, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)on such receivables resulting from precautionary Uniform Commercial Code filings or from re-characterization or any such sale as a financing or a loan; and
(uxxix) Liens on assets of the Borrower and its Subsidiaries not otherwise permitted above; provided that the sum of (x) the aggregate outstanding principal amount of Debt and other obligations secured by Liens securing obligations having an incurred pursuant to this clause (xxix), plus (y) the aggregate principal amount of Unsubordinated Debt shall not exceeding Five Million Dollars ($5,000,000exceed 2.5% of the Consolidated Net Worth as of the last day of the most recently ended fiscal period for which financial statements have been delivered or furnished pursuant to Section 4.01(a)(vii), Section 6.01(i) or Section 6.01(ii), as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Accelerant Holdings), Credit Agreement (Accelerant Holdings)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon (I) any of its Propertyproperty or upon the Equity Interests of any Subsidiary, except whether now owned or hereafter acquired, securing any Indebtedness owing to PAA or any of its Affiliates, or (II) any of its Principal Property or upon the following Equity Interests of any Subsidiary (collectivelyother than Unrestricted Subsidiaries), “Permitted Liens”):whether now owned or hereafter acquired, other than the following:
(a) Liens (i) pursuant to any Loan Document or securing any of the Obligations and (ii) if required in favor of Administrative Agentconnection with the foregoing, LC Issueron a pari-passu basis, Swing Line Lender any Swap Contracts with Lenders or any other Secured Party arising pursuant hereto or under any other Loan Documenttheir Affiliates;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) pursuant to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof Pine Prairie Lease and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)extensions, renewals and replacements thereof;
(c) Liens for Taxestaxes, assessments or other governmental charges and levies not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business for amounts which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings, if necessary, diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation (other than any Lien imposed by ERISA), or to secure letters of credit issued with respect thereto;
(f) deposits to secure the performance of bids, trade contracts, leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business (or to secure letters of credit issued in connection therewith);
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qh) inchoate Liens in respect of pending litigation, or Liens securing judgments for the payment of money (or securing letters of credit, appeal or other surety bonds related to such judgments) not constituting an Event of Default under Section 8.01(h);
(i) Liens arising from solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided, that (i) operating leases with respect such deposit account is not a dedicated cash collateral account and is not subject to assets which are not owned restrictions against access by any Credit Party the Borrower or any Subsidiary and in excess of those set forth by regulations promulgated by the precautionary UCC financing statement filings in respect thereof Board of Governors of the Federal Reserve System or pursuant to the Security Documents, and (ii) equipment such deposit account is not intended by the Borrower or other materials which are not owned by any Credit Party or Subsidiary located on to provide collateral to the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofdepository institution;
(rj) Liens arising out of a collection bank all presently existing and future division and transfer orders, advance payment agreements, processing contracts, gas processing plant agreements, operating agreements, gas balancing or deferred production agreements, pooling, unitization or communitization agreements, pipeline, gathering or transportation agreements, platform agreements, drilling contracts, injection or repressuring agreements, cycling agreements, construction agreements, salt water or other disposal agreements, leases or rental agreements, farm-out and farm-in agreements, exploration and development agreements, and any and all other contracts or agreements covering, arising under Section 4-210 out, used or useful in connection with or pertaining to the exploration, development, operation, production, sale, use, purchase, exchange, storage, separation, dehydration, treatment, compression, gathering, transportation, processing, improvement, marketing, disposal, or handling of the UCC on items in the course any oil and gas property of collectionany Loan Party;
(sk) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing respect of insurance premiumsoperating leases;
(tl) Liens existing on securing Acquired Indebtedness, provided that (i) each such Lien (A) existed at the Closing Date time of its acquisition and listed on Schedule 10.2was not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including Liens securing Permitted Refinancing Debt permitted the cost of construction) of such property or asset, (ii) no such Lien shall extend to or cover any property or asset other than the property or asset so acquired (or constructed), and any extension, renewal, refinancing, refunding or replacement (or successive extensions, renewals, refinancings, refundings or replacements), in whole or part, of the foregoing, and (iii) such Lien shall not secure any additional Indebtedness and obligations;
(m) rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of Law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(n) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under Section 10.1(l)any and all Laws;
(o) rights reserved to the grantors of any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith; and
(up) other Liens securing otherwise not permitted herein which secure obligations having in an aggregate principal amount not exceeding Five Million Dollars ($5,000,000)to exceed at any time outstanding 10% of Borrower’s Consolidated Tangible Net Worth.
Appears in 2 contracts
Sources: Credit Agreement (Paa Natural Gas Storage Lp), Credit Agreement (Paa Natural Gas Storage Lp)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Property, except whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the Closing Date and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the Property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10benefited thereby is permitted by Section 7.03(b) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens (other than Liens imposed under ERISA) for Taxestaxes, assessments or other governmental charges or levies not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) statutory Liens (of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other than Liens for Taxes imposed by law or imposed under ERISA) pursuant to customary reservations or retentions of title arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness, but provided that such Liens secure only amounts not yet due and payable or, if due and payable, (i) payment of are unfiled and no other action has been taken to enforce the obligations secured thereby is not yet due same or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtare being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or other than any Lien imposed by ERISA;
(f) deposits to secure the performance of tenders, bids, trade contracts contracts, licenses and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions zoning restrictions and other similar charges or encumbrances on affecting Real EstateProperty which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value or marketability of the property subject thereto or materially interfere with the ordinary course conduct of the business of the Credit Parties applicable Person;
(h) Liens securing Indebtedness permitted under Section 7.03(c) ; provided that (i) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness and their respective Subsidiariesthe proceeds thereof, (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the Property being acquired on the date of acquisition and (iii) such Liens attach to such Property concurrently with or within thirty (30) days after the acquisition thereof;
(i) leases, licenses or subleases granted to others not interfering in any material respect with the business of any Loan Party or any Subsidiary;
(j) any interest of title of a lessor under, and Liens arising from precautionary UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) solely evidencing such lessor’s interest under, leases permitted by this Agreement;
(k) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 7.02 ;
(l) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that institutions holding such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goodsdeposits;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(sn) Liens granted to secure Debt permitted judgment liens in respect of judgments that either individually or in the aggregate do not constitute an Event of Default under Section 10.1(m9.01(h) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(uo) other Liens securing obligations having any Lien (i) existing on property of a Person at the time of its consolidation with or merger into a Borrower or a Subsidiary or at the time such Person becomes a Subsidiary or (ii) existing on any property acquired by a Borrower or any Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed); provided that in each such case, (x) such Lien was not created or assumed in contemplation of such consolidation or merger or such Person becoming a Subsidiary or such acquisition of property, (y) such Lien shall extend solely to the property so acquired or in the case of an aggregate acquisition of a Subsidiary, the assets of the Subsidiary and (z) such Lien shall not secure an amount not exceeding Five Million Dollars ($5,000,000)of Indebtedness in excess of the amount referenced in Section 7.03(i) .
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Allion Healthcare Inc), Credit and Guaranty Agreement (Allion Healthcare Inc)
Liens. Create Create, incur or suffer to exist any Lien upon on any of its Propertythe assets, except rights, revenues or property, real, personal or mixed, tangible or intangible, whether now owned or hereafter acquired, of Borrower or any Subsidiary, other than the following (collectively, the “Permitted Liens”):
(ai) Liens for taxes not delinquent or for taxes being contested in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentgood faith by appropriate proceedings and as to which adequate financial reserves have been established on its books and records;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or any Lien imposed under by ERISA) arising as a matter of law created and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease maintained in the ordinary course of business which are not material in the aggregate, and which would not constitute or sublease result in a Material Adverse Event, and which constitute (A) pledges or deposits under worker’s compensation laws, unemployment insurance laws or similar agreement legislation, (B) good faith deposits in connection with bids, tenders, contracts or statute)leases to which Borrower is a party for a purpose other than borrowing money or obtaining credit, including rent security deposits, (C) Liens imposed by law, such as those of carriers, warehousemen and mechanics, if payment of the obligation secured thereby is not yet due, and (D) pledges or deposits to secure public or statutory obligations of Borrower or a Subsidiary, or surety, customs or appeal bonds to which Borrower or a Subsidiary is a party;
(niii) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made affecting real property owned by any Credit Party Borrower or any of its Subsidiaries Subsidiary which constitute minor survey exceptions or defects or irregularities in connection with any letter of intenttitle, minor encumbrances, easements or reservations of, or purchase agreement permitted hereunderrights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of such real property; provided, however, that all of the foregoing, in the aggregate, do not at any time materially detract from the value of said properties or materially impair their use in the operation of the businesses of the Borrower or any Subsidiary;
(oiv) leases each Lien described in respect Schedule 7.02(e) may be suffered to exist upon the same terms as those existing on the date hereof, but no extension or renewal thereof shall be permitted except for a refinancing in the ordinary course of real property on which facilities owned business for an amount not in excess of the original amount subject to such Lien;
(v) Liens arising out of judgments or leased by any Credit Party awards against the Borrower or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business Subsidiary with respect to obligations which are (i) not due the Borrower or (ii) Properly Contestedsuch Subsidiary shall be prosecuting an appeal or proceeding for review and with respect to which it shall have obtained a stay of execution pending such appeal or proceeding for review; provided, however, that the aggregate amount of judgments or awards, that are not insured by a financially sound and reputable insurer that has admitted liability without a reservation of rights, secured by such Liens shall not exceed $500,000 at any time outstanding;
(vi) Liens on or upon any property existing at the time of acquisition thereof by any Borrower or any Subsidiary; provided, however, that no Lien has been filed with respect thereto or, if any such Lien shall (A) extend to or cover any other property, and (B) have been filedcreated in contemplation or as a result of such acquisition by the Borrower or such Subsidiary;
(vii) Liens on or upon any property of a Person existing at the time such Person shall be merged into or acquired by the Borrower or any Subsidiary pursuant to Section 7.02(f); provided, a stay of enforcement of any however, that no such Lien shall be (A) extend to or cover any other property of any Borrower or such Subsidiary, (B) have been created in effectcontemplation or as a result of such merger or acquisition, and (C) secure Indebtedness assumed by Borrower or any Subsidiary in excess of $1,500,000;
(viii) purchase money Liens upon or in property of the Borrower or a Subsidiary acquired after the Closing Date; provided, further however, that adequate reserves with respect thereto are maintained on the books no such Lien shall extend to or cover any other property of the applicable PersonBorrower or a Subsidiary;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(six) Liens granted to secure Debt permitted under Section 10.1(m) solely in connection with the financing execution and delivery of insurance premiums;
(t) Liens existing on a Hedge Agreement between the Closing Date Borrower and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)a Lender or an Affiliate of a Lender; and
(ux) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)created under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (QC Holdings, Inc.)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) existing on the Restatement Date and listed on Schedule 7.01 to secure a portion this Agreement and any renewals or extensions thereof; provided that the property covered thereby is not increased, the amount of the purchase price Indebtedness secured thereby is not increased, and any renewal or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition extension of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(s)benefited thereby is permitted under this Agreement;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other encumbrances affecting real property which do not, taken as a whole, materially detract from the value of the Mortgaged Properties subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) judgment Liens arising from not giving rise to an Event of Default;
(i) operating leases any Lien existing on any asset (other than stock of a Subsidiary) prior to acquisition thereof by the Borrower or a Subsidiary, and not created in contemplation of such acquisition; provided that (i) no such Lien shall be extended to cover property other than the asset being acquired, (ii) such Lien was not created in contemplation of or in connection with such acquisition, (iii) the Indebtedness thereby secured is permitted by Section 7.04(e) or 7.04(h);
(j) Liens securing Capitalized Lease obligations; provided that the Indebtedness in respect to assets which are not owned of such Capitalized Lease is permitted under Section 7.04(e);
(k) Purchase money Liens upon or in any property acquired by any Credit Party Borrower or any Subsidiary and of its Subsidiaries to secure the precautionary UCC financing statement filings in respect thereof deferred portion of the purchase price of such property or to secure Indebtedness incurred to finance the acquisition of such property; provided that (i) no such Lien shall be extended to cover property other than the property being acquired, and (ii) equipment the Indebtedness thereby secured is permitted by Section 7.04(e);
(l) Liens reserved in or other materials exercisable under any lease or sublease to which are the Borrower or a Subsidiary is a lessee which secure the payment of rent or compliance with the terms of such lease or sublease; provided, that the rent under such lease or sublease is not owned by any Credit Party then overdue and the Borrower or Subsidiary located on is in material compliance with the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business terms and the precautionary UCC financing statement filings in respect conditions thereof;
(rm) Liens any interest or title of a collection bank arising lessor under Section 4-210 of any lease entered into by the UCC on items Borrower or any Subsidiary in the ordinary course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with its business and covering only the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)assets so leased; and
(un) other Liens securing obligations having an incurred in the ordinary course of business in connection with margin requirements under Lender Hedging Agreements not to exceed in the aggregate amount not exceeding Five Million Dollars ([$5,000,000)] at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Markwest Hydrocarbon Inc), Credit Agreement (Markwest Energy Partners L P)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except the following (collectivelywhether now owned or hereafter acquired, “Permitted Liens”):except:
(a) Liens for taxes, assessments or governmental charges or levies (i) not yet due or that are being contested in favor good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of Holdings or its Subsidiaries, as the case may be, in conformity with GAAP and such Liens do not have priority over the Administrative Agent, LC Issuer, Swing Line Lender ’s Liens or any other Secured Party arising (ii) not required to be paid pursuant hereto or under any other Loan Documentto Section 6.3;
(b) carriers’, warehousemen’s, landlord’s, mechanics’, materialmens’, workmens’, suppliers’, repairmens’ or other like Liens securing fixed assets (including arising in connection with Permitted Purchase Money Debt) to secure the ordinary course of business that are not overdue for a portion period of the purchase price or financing thereof so long as such Liens are incurred not more than ten thirty (1030) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt or that are being contested in connection with the funding or financing of such fixed asset(s)good faith by appropriate proceedings;
(c) Liens for Taxes, assessments imposed by Requirements of Law or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and deposits made in connection therewith in the Ordinary Course ordinary course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security legislation; provided that (i) such Liens are for amounts not yet due and payable or similar legislationdelinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings for orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the property subject to any such Lien and (ii) to the extent such Liens are not imposed by Requirements of Law, such Liens shall in no event encumber any property other than cash and Cash Equivalents;
(d) deposits to secure the performance of tenders, bids, trade contracts and leases (other than Debtfor borrowed money), leases, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature nature, each incurred in the Ordinary Course ordinary course of Businessbusiness (other than for indebtedness or any Liens arising under ERISA);
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(he) easements, rights-of-way, restrictions (including zoning restrictions), covenants or other agreements of recordcovenants, survey and other non-monetary title exceptions licenses, encroachments, protrusions and other similar charges or encumbrances encumbrances, and minor title deficiencies on Real Estateor with respect to any real property, which do not interfere with in each case whether now or hereafter in existence, incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the Credit Parties property subject thereto or materially interfere with the ordinary conduct of the business of Holdings and their respective its Subsidiaries;
(f) the licensing of patents, trademarks, copyrights and other Intellectual Property rights in the ordinary course of business;
(g) Liens listed on Schedule 7.3(g), securing Indebtedness permitted by Section 7.2(d), provided that no such Lien shall be extended to cover any additional property after the Effective Date and that the amount of Indebtedness secured thereby is not increased (it being understood that in the case of this clause (g) individual financings of specific equipment provided by one lender may be cross collateralized to other financings of specific equipment provided by such lender or its affiliates);
(h) Liens securing Indebtedness of Holdings or its Subsidiaries incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital assets, provided that (i) normal such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and customary rights (iii) the amount of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items Indebtedness secured thereby is not increased (it being understood that in the course case of collection, and this clause (h) individual financings of specific equipment assets provided by one lender may be cross collateralized to other similar Liens granted in the Ordinary Course financings of Business securing customary account fees and charges payable in respect of depositary accountsspecific equipment provided by such lender or its affiliates);
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired created pursuant to the Security Documents;
(j) any interest or title of a Permitted Acquisition; provided that such Liens (x) are not incurred lessor under any lease entered into by Holdings or its Subsidiaries in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition ordinary course of its business and covering only the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)assets so leased;
(k) So long as the Intercreditor Agreement is in effectLiens arising out of judgments, Liens in favor attachments or awards that do not constitute an Event of the Term Loan Agent with respect to the Debt permitted Default under Section 10.1(b)(i)8.1(h) of this Agreement;
(l) Liens in favor not otherwise permitted by this Section 7.3 so long as the aggregate outstanding principal amount of customs the obligations secured thereby does not exceed (as to Holdings and revenue authorities arising as a matter its Subsidiaries) exceed the greater of Applicable Law to secure payment $5,000,000 and 7.5% of customs duties in connection with the importation of GoodsLTM Consolidated Adjusted EBITDA at any one time;
(m) any interest or title of a lessor lessor, sublessor, licensor or sub-lessor licensee under any lease or license entered into by the Borrower or any other Subsidiary in the ordinary course of Real Estate made its business;
(n) Liens arising out of a conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(o) Liens arising from precautionary UCC (or equivalent) financing statements filed under operating leases or consignment of goods;
(p) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Credit Party or any of its Subsidiaries as lessee or sub-lesseeLoan Party, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually in each case granted in such lease in the ordinary course of business in favor of the bank or sublease banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or similar agreement or statute)indirectly) the repayment of any Indebtedness;
(nq) Liens attaching solely on any to ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords a Permitted Acquisition or other like Liens arising in the Ordinary Course of Business with respect relevant Specified Investment or attaching solely to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits in connection withwith an acquisition of property not otherwise prohibited hereunder, or as part ofincluding, the financing thereof) from time without limitation, prohibited pursuant to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofSection 7.15;
(r) Liens of a collection collecting bank arising in the ordinary course of business under Section 4-210 208 of the UCC on items Uniform Commercial Code in effect in the course of collectionrelevant jurisdiction, covering only the items being collected upon;
(s) Liens granted by a Subsidiary that is not a Loan Party in favor of the Borrower or another Loan Party in respect of Indebtedness or other obligations owed by such Subsidiary to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiumsBorrower or such other Loan Party;
(t) Liens on insurance policies and the proceeds thereof granted in the ordinary course of business to secure the financing of insurance premiums with respect thereto under Section 7.2(k);
(u) Liens on property or assets of a person existing at the time such person or asset is acquired or merged with or into or consolidated with any Loan Party or Subsidiary thereof to the extent permitted hereunder (and not created in anticipation or contemplation thereof); provided that such Liens (i) do not extend to property not subject to such Liens at the time of acquisition (other than improvements thereon) and are no more favorable to the lienholders than such existing Lien and (ii) (1) do not secure Indebtedness in excess of $1,500,000 in the aggregate at any one time outstanding or (2) as at the time such person or asset is acquired or merged with or into or consolidated with any Loan Party or Subsidiary, the Total Net Leverage Ratio of Holdings and its Subsidiaries, on a consolidated basis, for the Closing Date most recently ended four Fiscal Quarter period for which financial statements were required to be delivered pursuant to Section 6.1(a) or (b) does not exceed 3.50:1.00 on a pro forma basis (it being understood that in the case of this clause (u) individual financings of specific equipment provided by one lender may be cross collateralized to other financings of specific equipment provided by such lender or its affiliates);
(v) Liens securing Indebtedness of Foreign Subsidiaries of Holdings incurred pursuant to Section 7.2; provided that such Liens do not at any time encumber any property other than the property of such Foreign Subsidiaries; and
(w) Liens securing junior Lien Indebtedness incurred pursuant to Section 7.2(t); provided that such Liens are subject to an Intercreditor Agreement as described therein. For purposes of determining compliance with this Section 7.3, (i) a Lien need not be incurred solely by reference to one category of Liens permitted by the foregoing provisions of this Section 7.3 described in this Section 7.3 but may be incurred under any combination of such categories (including in part under one such category and listed on Schedule 10.2in part under any other such category), including (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Liens permitted by the foregoing provisions of this Section 7.3, the Borrower shall, in its sole discretion, classify such Lien (or any portion thereof) and may include the amount and type of such Lien in one or more of the clauses of this Section 7.3, (iii) if any Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other are incurred to refinance Liens securing obligations having an Indebtedness initially incurred in reliance on a basket measured by reference to a percentage of LTM Consolidated Adjusted EBITDA, at the time of incurrence, and such Permitted Refinancing would cause the percentage of LTM Consolidated Adjusted EBITDA restriction to be exceeded if calculated based on the LTM Consolidated Adjusted EBITDA on the date of such refinancing, such percentage of LTM Consolidated Adjusted EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such Permitted Refinancing secured by such Liens does not exceed the outstanding principal or committed amount (whichever is higher) of such Indebtedness secured by such Liens being refinanced, plus the aggregate amount not exceeding Five Million Dollars of fees, underwriting discounts, premiums and other costs and expenses ($5,000,000)including accrued and unpaid interest) incurred or payable in connection with such refinancing, and (iv) it is understood that a Lien securing Indebtedness that is permitted by the foregoing provisions of this Section 7.3 may secure Debt Obligations with respect to such Indebtedness.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (DoubleVerify Holdings, Inc.), Amendment and Restatement Agreement (DoubleVerify Holdings, Inc.)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any property or assets now owned or hereafter acquired by it (including, in the case of its Propertysecurities owned by it, except by the following (collectivelysale of such securities pursuant to any repurchase agreement or similar arrangement) or on any income or revenues or rights in respect of any thereof, “Permitted Liens”):except:
(a) Liens in favor on property or assets of Administrative Agent, LC Issuer, Swing Line Lender any Guarantor or any other Secured Party arising pursuant hereto Subsidiary existing on the Restatement Date and any extensions, renewals or under any other Loan Documentreplacements thereof; provided that such Liens (i) shall secure only those obligations that they secure on the Restatement Date and permitted refinancings thereof and (ii) shall encumber only those properties and assets of such Guarantor or such Subsidiary that they encumber on the Restatement Date;
(b) Liens securing fixed assets any Lien existing on any property or asset prior to the acquisition thereof by any Guarantor or any Subsidiary; provided that (including i) such Lien is not created in contemplation of or in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding such Lien does not apply to any other property or financing assets (other than after acquired property or assets) of such fixed asset(s)Guarantor or such Subsidiary;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or being Properly Contestedthe payment of which is not at the time required by Section 5.03;
(d) statutory Liens (of landlords and carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other than like Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Business, but only if (i) payment of the business and securing obligations secured thereby is that are not yet due or the payment of which is being Properly Contested; (ii) such Liens not at the time required by Section 5.03 or which do not materially impair in the aggregate have a material adverse effect on the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtproperty encumbered thereby;
(e) Liens consisting of pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under compliance with workers’ compensation, unemployment insurance and other types of social security laws or similar legislation, regulations or in connection with other insurance maintained by the Loan Parties or their Subsidiaries;
(f) deposits to secure the performance of tenders, bids, trade contracts and (other than for obligations for the payment of borrowed money), leases (other than DebtCapital Lease Obligations), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryzoning restrictions, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements restrictions on use of record, survey and other non-monetary title exceptions real property and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any which, in the aggregate, do not materially interfere with the ordinary conduct of its Subsidiaries in connection with any letter the business of intentthe Guarantors and the Subsidiaries, or purchase agreement permitted hereunder;
(o) taken as a whole, and ground leases in respect of real property on which facilities owned or leased by any Credit Party Guarantor or any of its Subsidiaries Subsidiary are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents;
(ph) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords any attachment or other like Liens arising in judgment Lien unless the Ordinary Course judgment it secures would constitute an Event of Business with respect to obligations which are Default under clause (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonArticle VII;
(qi) any interest or title of a lessor or lessee under any lease permitted by this Agreement (including any Lien granted by such lessor or lessee);
(j) Liens arising on Cash and Carry Securities securing Indebtedness permitted by Section 6.01(c);
(k) Liens on receivables and notes payable owing from employees or investors and related rights securing Indebtedness the proceeds of which are loaned to employees of the Guarantors, the Subsidiaries or Affiliates of any of the foregoing or to investors in the Guarantors’ or the Subsidiaries’ investment funds;
(l) Liens not otherwise permitted by this Section 6.02 securing Indebtedness or other obligations permitted to be incurred hereunder in an aggregate principal amount not to exceed $200,000,000 (plus related obligations) at any time outstanding;
(m) immaterial Liens of any Loan Party or of any Subsidiary not securing Indebtedness for borrowed money;
(n) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not interfere in any material respect with the business of the Guarantors and the Subsidiaries, taken as a whole;
(o) Liens (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on the items in the course of collection, (ii) attaching to trading accounts or other brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry;
(p) Liens deemed to exist in connection with repurchase agreements and reasonable customary initial deposits and margin deposits and similar Liens attaching to trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(q) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of any Guarantor or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Guarantors and the Subsidiaries or (iii) relating to agreements other than in connection with Indebtedness entered into by a Guarantor or a Subsidiary; and
(r) Liens arising from precautionary Uniform Commercial Code financing statement filings;
(s) Liens granted to secure on assets of a Seasoning Subsidiary securing Non-Recourse Seasoning Debt permitted under Section 10.1(m) in connection with the financing of insurance premiumssuch Seasoning Subsidiary;
(t) Liens existing on the Closing Date securing Indebtedness described in Section 6.01(d) and listed on Schedule 10.2, including related obligations;
(u) Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)required to be created pursuant to this Agreement; and
(uv) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)on the right of any Subsidiary that is a general partner to issue capital call notices and to exercise rights with respect to capital commitments owing to any Affiliate that secures Indebtedness of such Affiliate.
Appears in 2 contracts
Sources: Credit Agreement (Blackstone Group L.P.), Credit Agreement (Blackstone Group L.P.)
Liens. Create None of the Parent, the Borrower nor the Restricted Subsidiaries shall create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty or assets or revenues, except whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) (i) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document; (ii) Liens pursuant to any ABL Facility Documents so long as the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (A) the Crossing Liens Intercreditor Agreement as an “ABL Representative” and (B) the Junior Lien Intercreditor Agreement (if any) as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement); and (iii) Liens securing Indebtedness incurred pursuant to Section 7.03(a)(iii); provided that (A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with Indebtedness under the Initial Facility, the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (1) the Pari Passu Intercreditor Agreement as an “Additional Priority Debt Representative”, (2) the Crossing Liens Intercreditor Agreement as a “Fixed Debt Representative” and (3) the Junior Lien Intercreditor Agreement (if any) as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement) and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis with Indebtedness under the Initial Facility, the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement);
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.27.01(b), including (ii) Liens securing Permitted Refinancing Debt arising under Contractual Obligations listed on Schedule 7.08, and (iii) any modifications, replacements, renewals, refinancings, or extensions of any of the foregoing; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 10.1(l7.03(b)(i); and
, and (uy) other Liens securing proceeds and products thereof, and (B) the replacement, renewal, extension or refinancing of the obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).secured or benefited by such Liens, to the extent constituting Indebtedness, is permitted by Section 7.03;
Appears in 2 contracts
Sources: Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP)
Liens. Create (a) Create, incur, assume or suffer to exist any Lien upon any Borrowing Base Property whether now owned or hereafter acquired (except to the extent released as a Borrowing Base Property pursuant to and in accordance with the terms of its Property, except Section 1.10 hereof) other than the following (collectively, “Permitted Liens”):following:
(ai) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(bii) Liens securing fixed assets existing on the date hereof and listed on Schedule 5.08(b) or Liens existing on the date any Borrowing Base Property is approved as a Borrowing Base Property and which are referenced in the applicable Mortgage Policy for such Borrowing Base Property and any renewals, refinancing or extensions thereof, provided that (including A) the amount secured or benefited thereby is not, at any time, increased (except to the extent of (1) any existing unfunded commitments related thereto or (2) any reasonable premium or other reasonable amount paid, together with fees and expenses reasonably incurred in connection with Permitted Purchase Money Debtsuch refinancing) to secure a portion and (B) any Liens under this Section 7.01(a)(ii) which represent due and unpaid obligations of the purchase price or financing thereof so long as such Liens are incurred not more than ten Borrowers will not, in the aggregate, exceed five percent (105%) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Total Asset Value;
(ciii) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(iv) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established or if such Liens secure the obligations of tenants, licenses or other occupants of any Borrowing Base Property, then the same are not material in amount;
(v) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qvi) Liens arising from (i) operating leases with respect to assets which are not owned the Borrowing Base Leases and such other Leases granted by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time Borrowers in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the ordinary course of collection;
business (s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on extent not otherwise prohibited by the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(lterms hereof); and
(uvii) the interest of the lessor under an Approved Ground Lease and/or interests of licensors or licensees related to the business(es) operated pursuant to the applicable Borrowing Base Leases or other Leases permitted pursuant to the terms hereof.
(b) Create, incur, assume or suffer to exist any Lien upon any of the Equity Interests of any Borrowing Base Entity, other than the following:
(i) Liens pursuant to any Loan Document;
(ii) Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; and
(iii) Liens securing obligations having judgments for the payment of money not constituting an aggregate amount not exceeding Five Million Dollars ($5,000,000Event of Default under Section 8.01(h).
Appears in 2 contracts
Sources: Credit Agreement (Government Properties Income Trust), Credit Agreement (Government Properties Income Trust)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the following (collectivelyUniform Commercial Code of any jurisdiction a financing statement that names any Loan Party as debtor, “Permitted Liens”):or assign any accounts or other right to receive income, other than the following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or securing the Obligations pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure existing on the Closing Date and described on Schedule 7.01 and any Lien granted as a portion of the purchase price replacement or financing thereof so long as substitute therefor; provided that any such Liens are incurred not more than ten (10) days after the later of replacement or substitute Lien (i) except as permitted by Section 7.02(d), does not secure an aggregate amount of Indebtedness or other obligations, if any, greater than that secured on the acquisition of the fixed asset(s) which were the subject thereof Closing Date and (ii) does not encumber any property other than the incurrence of Permitted Purchase Money Debt in connection with property subject thereto on the funding or financing of such fixed asset(s)Closing Date;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are not overdue for a period of more than thirty (i30) not due days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions, covenants and other similar encumbrances and minor title defects affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds relating to such judgments;
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.02(f) and 7.02(g); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located Fair Market Value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rj) Liens related to Permitted Sale and Leaseback Transactions; provided, that such Liens do not encumber any other property of any Loan Party, and such Liens secure only the Attributable Indebtedness incurred in connection with such Permitted Sale and Leaseback Transaction;
(k) Liens securing Indebtedness permitted to be incurred hereunder in a collection maximum aggregate principal amount not to exceed $2,500,000 at any time outstanding;
(l) Leases of the real property of any Loan Party, in each case entered into in the ordinary course of such Loan Party’s business so long as such Leases do not (i) individually or in the aggregate, interfere in any material respect with the ordinary conduct of the business of any Loan Party or (ii) secure any Indebtedness;
(m) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Loan Party in the ordinary course of business in accordance with the past practices of such Loan Party;
(i) Liens constituting rights of (i) a collecting bank arising under Section 4-210 208 of the UCC on items in the course of collection, and (ii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Loan Party, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens arise by operation of applicable Law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(o) Liens on property of a Person existing at the time such Person is acquired or merged with or into or consolidated with any Loan Party to the extent permitted under Sections 7.03(n) and 7.04(c); provided that such Liens (i) do not extend to property not subject to such Liens at the time of such acquisition, merger or consolidation (other than improvements thereon), (ii) are no more favorable to the lienholders than such existing Liens, (iii) are not created in anticipation or contemplation of such acquisition, merger or consolidation, and (iv) if such Lien constituted a Lien of a Loan Party, such Liens would be permitted pursuant to Sections 7.01(a) through 7.01(n) or 7.01(p) through 7.01(u);
(p) Liens, if any and other matters disclosed in any Mortgage Policy issued and accepted by the Administrative Agent in its reasonable discretion;
(q) Liens arising under non-exclusive licenses of Intellectual Property granted by any Loan Party in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Loan Parties and which do not secure any Indebtedness for borrowed money;
(r) precautionary Liens arising from the filing of UCC financing statements solely as a precautionary measure in connection with (i) operating leases or (ii) the consignment of goods where a Loan Party is the consignee, provided that such Liens do not extend to any assets other than those the subject of such operating lease or consignment;
(s) Liens granted by Holdings or any of its Subsidiaries in favor of a Loan Party in respect of Indebtedness owed by Holdings or such Subsidiary to secure Debt permitted under Section 10.1(msuch Loan Party; provided that such Indebtedness is (i) in connection with evidenced by an intercompany note and (ii) pledged by such Loan Party as Collateral pursuant to the financing of insurance premiumsCollateral Documents and subordinated on terms and subject to documentation reasonably satisfactory to the Administrative Agent;
(t) Liens existing (i) on advances of cash or Cash Equivalents constituting a good ▇▇▇▇▇ ▇▇▇▇▇▇▇ money deposit in favor of the Closing Date seller of any property acquired in any Permitted Acquisition or any other Investment permitted by this Agreement to be applied against the purchase price for such Permitted Acquisition or Investment, and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt (ii) consisting of an agreement to dispose of any property pursuant to any Disposition permitted under Section 10.1(l)by this Agreement; and
(u) other Liens not otherwise permitted under this Section 7.01 securing obligations having an that do not in the aggregate amount not exceeding Five Million Dollars (exceed $5,000,000)5,000,000 at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon on any of its Propertyassets, except other than the following (collectively, “Permitted Liens”):
): (a) Liens in favor liens securing the payment of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges Taxes either not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter the validity of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or which is being Properly Contestedcontested in good faith by appropriate proceedings, and as to which such Credit Party or such Subsidiary shall, under IFRS or GAAP, as applicable, have set aside on its books and records adequate reserves; (iib) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of pledges, deposits or pledges Liens made in the Ordinary Course of Business in connection with, or to secure payment of, obligations arising under workers’ worker’s compensation, unemployment insurance insurance, social security and other types of social security or similar legislationlaws, or to secure the performance of tenders, bids, trade tenders or contracts and leases (other than Debt)for the repayment of borrowed money) or to secure indemnity, statutory obligationsperformance or other similar bonds for the performance of bids, surety bonds tenders or contracts (other than bonds related for the repayment of borrowed money) or to judgments secure statutory obligations or Adverse Proceedings unless permitted by Section 10.2(g))surety, performance stay, appeal or custom bonds, or arising as a result to secure indemnity, performance or other similar bonds in the Ordinary Course of progress payments under government contractsBusiness; (c) Liens in favor of the Collateral Agent for the benefit of the Holders; (d) Liens which arise by operation of law, and other obligations than Liens which arise by operation of a like nature Environmental Laws, incurred in the Ordinary Course of Business;
Business (for sums not constituting borrowed money) that are not overdue for a period of more than thirty (30) days or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with IFRS or GAAP, as applicable (if so required); (e) zoning restrictions, building codes, easements, rights of way, licenses, covenants and other similar restrictions affecting the use of real property that do not secure monetary obligations and do not materially impair the use of such real property for its intended purposes or the value thereof; (f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiarydescribed on Schedule 8.1, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred shall secure only those obligations which they secure on the Closing Date or, in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition case of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted the Indebtedness outstanding under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ Loan Documents, Liens securing any refinancing, renewal, replacement or extension of such Indebtedness to the extent permitted under Section 8.2(d); (g) purchase money deposits made by security interests on equipment of any Credit Party or any Subsidiary securing Capital Leases or purchase money Indebtedness in each case permitted by Section 8.2(b); (h) Liens arising from the filing of its Subsidiaries precautionary UCC or Personal Property Security Act financing statements solely as a precautionary measure in connection with any letter operating leases, licenses or consignment of intent, goods; (i) rights of offset or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like statutory banker’s Liens arising in the Ordinary Course of Business in favor of commercial banks; provided that any such Lien shall only extend to deposits and Property in possession of such commercial bank; (j) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to obligations any assets under any license or lease agreement expressly permitted under this Agreement and entered into in the Ordinary Course of Business which are do not (i) not due interfere in any material respect with the business of any Credit Party or (ii) Properly Contestedsecure any Indebtedness; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qk) judgment Liens arising from (i) operating leases with respect to assets judgments which do not constitute an Event of Default, provided that the enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings, or (ii) imposed in connection with judgments and disputes which do not constitute an Event of Default and which are not owned being contested due to legal budgetary constraints (such constraints being consistent with the Turnaround Plan), provided that the Company notified the Collateral Agent in writing promptly upon determining not to contest such judgment, dispute or related Lien; (l) non-exclusive outbound licenses or sublicenses of patents, copyrights, trademarks and other intellectual property rights granted by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 not interfering in any respect with the precautionary UCC ordinary conduct of or materially detracting from the value of the business of such Credit Party; (m) [reserved]; (n) liens described on Schedule 8.1(n); (o) [reserved]; and (p) any other Liens on Property not otherwise permitted by this Section 8.1 so long as neither (i) the aggregate principal amount of the Indebtedness and other obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the Property subject thereto exceeds $1,000,000 at any time outstanding. No Credit Party shall permit the filing of any financing statement filings in naming such Person as debtor, except for financing statements filed with respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)Liens.
Appears in 2 contracts
Sources: Securities Purchase Agreement (MedMen Enterprises, Inc.), Securities Purchase Agreement (MedMen Enterprises, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the following (collectivelyUniform Commercial Code of any jurisdiction a financing statement that names the Borrower or any of its Restricted Subsidiaries as debtor, “Permitted Liens”):or assign any accounts or other right to receive income, other than the following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan DocumentDocument(including to secure the Senior Notes so long as the Senior Notes are required to be secured equally and ratably with the Obligations);
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price date hereof and listed on Schedule 5.08 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(d);
(c) Liens imposed by law for Taxestaxes, assessments or other governmental charges of any Governmental Authority for claims not yet delinquent or which are being Properly Contestedcontested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with GAAP;
(d) statutory Liens (of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other than Liens for Taxes imposed by law or imposed under ERISA) arising as a matter created in the ordinary course of law business and in existence less than 90 days from the Ordinary Course date of Business, but only if (i) payment of the obligations secured thereby is creation thereof for amounts not yet due or is which are being Properly Contested; (ii) such contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with GAAP and which Liens do are not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtyet enforceable against other creditors;
(e) Liens consisting of incurred or deposits or pledges made in the Ordinary Course ordinary course of Business business (including, without limitation, surety bonds and appeal bonds) in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, benefits or to secure the performance of tenders, bids, trade leases, contracts and leases (other than Debtfor the repayment of Indebtedness), statutory obligations, surety bonds (obligations and other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, similar obligations or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
easements (g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; including reciprocal easement agreements and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easementsutility agreements), rights-of-way, covenants, consents, reservations, encroachments, variations and zoning and other restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate(whether or not recorded), which do not interfere materially with the ordinary course conduct of the business of the Credit Parties Borrower or any Subsidiary and their respective Subsidiarieswhich do not materially detract from the value of the property to which they attach or materially impair the use thereof to the Borrower or any Subsidiary;
(g) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(h) Liens securing Indebtedness permitted under Section 7.02(i); provided that (i) normal such Liens do not at any time encumber any property other than the property financed by such Indebtedness and customary rights (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of setoff upon deposits in favor the property being acquired on the date of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsacquisition;
(i) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (Aother than by designation as a Restricted Subsidiary pursuant to Section 6.19), in each case after the date hereof (other than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary); provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired Property property subjected to a Lien securing Debt Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured thereby is permitted under Section 10.1(f7.02(j);
(j) any interest or title of a lessor or sublessor under any lease entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and covering only the assets so leased;
(Bk) Property acquired pursuant Liens on cash deposits and other funds maintained with a depositary institution, in each case arising in the ordinary course of business by virtue of any statutory or common law provision relating to a Permitted Acquisition; provided banker’s liens;
(l) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (zi) do not attach to interfere in any other Property material respect with the business of the Credit Parties Borrower or any of their the Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)do not secure any Indebtedness;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(lm) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease goods in the ordinary course of business or sublease or similar agreement or statute)business;
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, and (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking industry;
(so) Liens granted (i) on cash advances in favor of the seller of any property to secure Debt be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 7.03 or to be applied against the purchase price for such Investment, or (ii) consisting of an agreement to dispose of any property in a Disposition permitted under Section 10.1(m) in connection with 7.05, solely to the financing extent such Disposition, would have been permitted on the date of insurance premiumsthe creation of such Lien;
(tp) Liens existing on arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Borrower or any of the Restricted Subsidiaries in the ordinary course of business; and
(uq) other Liens securing obligations having Indebtedness outstanding in an aggregate principal amount not exceeding Five Million Dollars (to exceed $5,000,000)50,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Health Management Associates Inc), Credit Agreement (Health Management Associates Inc)
Liens. Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “Permitted Liens”):
(a) Liens in favor The Company will not directly or indirectly create, incur, assume or permit to exist (upon the happening of Administrative Agenta contingency or otherwise) any Lien on or with respect to any of the Collateral, LC Issuerwhether now owned or held or hereafter acquired, Swing Line Lender or any other Secured Party income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(i) Liens arising pursuant hereto under the Note Documentation; or
(ii) Liens for taxes not yet due or under any other Loan Document;which are being contested in good faith and by appropriate proceedings in the circumstances, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP.
(b) Liens securing fixed assets The Company will not permit ▇▇▇▇▇ Oxford, any ▇▇▇▇▇ Oxford Entity or any ▇▇▇▇▇ Oxford Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including in connection upon the happening of a contingency or otherwise) any Lien on or with Permitted Purchase Money Debt) respect to secure a portion any of the purchase price its property or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of assets, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(i) Liens existing on the acquisition of date hereof that secure Indebtedness listed on Schedule 5.6 hereto and any renewals or extensions thereof; provided that the fixed asset(s) which were the subject thereof property covered thereby is not increased and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding any renewal or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment extension of the obligations secured or benefitted thereby is permitted pursuant to Section 9.3;
(ii) Liens for taxes not yet due or is which are being Properly Contested; (ii) such Liens do not materially impair contested in good faith and by appropriate proceedings in the value or use circumstances, if adequate reserves with respect thereto are maintained on the books of the Property or materially impair operation of the business of any Borrower or Subsidiary; and applicable Person in accordance with GAAP;
(iii) such carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens do arising in the ordinary course of business which are not secure Debtoverdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings in the circumstances, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(hiv) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges encumbrances affecting real property and other minor defects or irregularities in title and other similar encumbrances on Real Estateincluding the reservations, limitations, provisos and conditions, which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property of ▇▇▇▇▇ Oxford, any ▇▇▇▇▇ Oxford Entity or any ▇▇▇▇▇ Oxford Subsidiary, as applicable, or materially interfere with the ordinary course conduct of the business of the Credit Parties and their respective Subsidiariesapplicable Person;
(iv) normal and customary statutory rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities set-off arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)business;
(nvi) with respect to any real property, immaterial title defects or irregularities that do not, individually or in the aggregate, materially impair the use of such real property;
(vii) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits or other escrow arrangements made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)agreement; and
(uviii) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)arising under the Note Documentation.
Appears in 2 contracts
Sources: Mezzanine Note Agreement (Aimco OP L.P.), Mezzanine Note Agreement (Apartment Income REIT Corp.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price date hereof and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence of Permitted Purchase Money Debt in connection amount secured or benefited thereby is not increased, and (iii) the direct or any contingent obligor with the funding or financing of such fixed asset(s)respect thereto is not changed;
(c) Liens for Taxes, assessments taxes or other governmental charges unpaid utilities not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 60 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) Liens arising pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(i) operating leases Liens securing purchase money obligations of the Borrower or of Subsidiaries of the Borrower, for fixed or capital assets acquired after the Closing Date, provided that (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition and (C) such Liens attach to such property concurrently with respect to assets which are not owned by any Credit Party or any Subsidiary and within 90 days after the precautionary UCC financing statement filings in respect thereof acquisition thereof, and (ii) equipment Liens securing any refinancing of such Indebtedness, provided that such Liens do not extend to additional property and the amount of the Indebtedness is not increased;
(i) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other materials surety bonds related to such judgments;
(j) Liens arising in the ordinary course of business under Oil and Gas Agreements to secure compliance with such agreements, provided that any such Lien referred to in this clause are for claims which are not owned delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP, and provided, further, that any Credit Party such Lien referred to in this clause does not materially impair the use of the property covered by such Lien for the purposes for which such property is held by the Borrower or any Subsidiary located on or materially impair the premises value of such Credit Party or Subsidiary (but not in connection withproperty subject thereto, or as part ofand provided, further, that such Liens are limited to property that is the financing thereof) from time to time in subject of the Ordinary Course of Business relevant Oil and the precautionary UCC financing statement filings in respect Gas Agreement and any proceeds thereof;
(rk) Liens of a collection bank arising under Section 4-210 of the UCC on items incurred in the ordinary course of collection;
(s) Liens granted business that constitute banker’s Liens, rights of set-off or similar rights and remedies as to secure Debt permitted under Section 10.1(m) in connection deposit accounts or other funds maintained with the financing a depositary institution, whether arising by operation of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)law or pursuant to contract; and
(ul) other Liens securing obligations having an not otherwise permitted by this Section 7.01 if at the time of, and immediately after giving effect to, the creation or assumption of any such Lien, the aggregate outstanding principal amount of Indebtedness of the Borrower and its Subsidiaries secured by any Liens not exceeding Five Million Dollars otherwise permitted hereby does not exceed 10% of Consolidated Net Worth of the Borrower and its Subsidiaries ($5,000,000determined as of the end of the most recently completed fiscal quarter for which financial statements have been provided pursuant to Section 6.01); provided, further, notwithstanding the foregoing, that no Lien permitted under this Section 7.01(l) shall secure Indebtedness owing under the Senior Note Indebtedness unless and until the Indebtedness under the Loan Documents are equally and ratably secured by all property subject to such Lien, in each case pursuant to documentation reasonably satisfactory to the Required Lenders.
Appears in 2 contracts
Sources: Term Loan Agreement (Patterson Uti Energy Inc), Credit Agreement (Patterson Uti Energy Inc)
Liens. Create Create, incur, assume or suffer to exist any Lien upon upon, any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets existing on the date hereof and (including in connection with Permitted Purchase Money Debtother than any individual Lien that secures obligations of less than $2,000,000) to secure a portion of the purchase price set forth on Schedule 7.01 and any renewals, extensions, modifications, restatements or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of replacements thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(s)benefited thereby is permitted by Section 7.03;
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due and payable or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f) (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust; provided that no UCC financing statement has been filed by surety and no other action has been taken to perfect any such Liens of any surety;
(g) easements, rights-of-way, zoning restrictions, other restrictions, covenants and other non-monetary encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qh) Liens arising from securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i) operating leases Liens securing Indebtedness of the Company and its Restricted Subsidiaries permitted by Section 7.03(l); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with respect or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such Lien, including replacement parts, accessories or enhancements that are affixed to assets which are not owned any leased goods and other property financed by the same Person (i.e., cross-collateralization of such property) and (ii) the principal amount of Indebtedness secured by any Credit Party such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i));
(j) Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Company or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k) Liens on the property of the Company or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;
(l) Liens (including those arising from precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials those which are not owned security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Company or any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time its Restricted Subsidiaries in the Ordinary Course ordinary course of Business and the precautionary UCC financing statement filings in respect thereofbusiness;
(rm) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt securing Indebtedness permitted under Section 10.1(m) 7.03(c), to the extent that the Indebtedness being refinanced was originally secured in connection accordance with this Section 7.01, provided that such Lien does not apply to any additional property or assets of the financing Company or any Restricted Subsidiary (other than property or assets within the scope of insurance premiumsthe original granting clause or the proceeds of the property or assets subject to such Lien);
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor existing on the Closing Date and listed on Schedule 7.01 and any renewals, extensions or replacements thereof; provided that the property covered thereby is not increased, and with respect to any replacement Lien, the amount of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentIndebtedness secured by such Lien shall not be increased;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Businessfor taxes, but only if (i) payment of the obligations secured thereby is assessments or governmental charges or levies not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) Liens of carriers, warehousemen, mechanics, materialmen, workmen and repairmen or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted;
(d) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age benefits, other social security obligations, taxes, assessments, statutory obligations and other similar charges, other than any Lien imposed by ERISA;
(e) (i) deposits to secure the performance of bids, tenders, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance and return of money bonds, agreements with utilities and other obligations of a like nature incurred in the ordinary course of business (including in each case deposits and/or Liens securing letters of credit issued in lieu of any such cash deposits), and (ii) other cash deposits required to be made in the ordinary course of business, including those made to secure health, safety and environmental obligations in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qg) Liens arising from securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments), which judgments do not constitute an Event of Default under Section 8.01(h), and the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any such legal proceeding;
(h) Liens securing Indebtedness permitted under Section 7.03(c); provided that (i) operating leases with respect to assets which are such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment with respect to Indebtedness permitted by Section 7.03(c)(i) such Liens attach to such property concurrently with or other materials which are not owned by any Credit Party or Subsidiary located on within ninety days after the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect acquisition thereof;
(ri) leases or subleases granted to others not interfering in any material respect with the business of any Loan Party or any Subsidiary;
(j) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(k) normal and customary rights of setoff and other Liens upon deposits of cash and securities in favor of banks, brokers or other financial institutions;
(l) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(m) any Lien existing on property (and the proceeds thereof) existing at the time of its acquisition and any modification, replacement, renewal or extension thereof; provided that such Lien was not created in contemplation of such acquisition;
(n) Liens incurred or assumed in the ordinary course on cash, marketable securities, real estate loans (including related purchase commitments) commodities or other financial products to secure securities lending transactions at Regulated Subsidiaries and other stock lending transactions, repurchase agreements, and other collateralized financing transactions at Subsidiaries;
(o) pledges of securities or commodity positions and exchange memberships in the ordinary course of business;
(p) deposits or securities with commodity or securities exchanges or clearing organizations, or with other exchanges or markets, in each case in the ordinary course of business;
(q) Liens in favor of customers of Broker-Dealer Subsidiaries arising in the ordinary course of business and Liens securing indebtedness of Broker-Dealer Subsidiaries in respect of customer funds in the ordinary course of business;
(r) Liens securing Indebtedness permitted under Section 7.03(i).
(s) Liens on cash and marketable securities granted to secure Debt permitted by Berkeley Point in favor of ▇▇▇▇▇▇ Mae under Section 10.1(m) the Delegated Underwriting and Servicing Program and/or ▇▇▇▇▇▇▇ Mac under the Targeted Affordable Housing Program in connection with respect of loss sharing arrangements, in each case in the financing ordinary course of insurance premiums;business; and
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing Indebtedness or other obligations having in an aggregate principal amount not exceeding Five Million Dollars (to exceed at any one time, the difference of $5,000,00040,000,000 less any Indebtedness incurred pursuant to Section 7.03(j).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (BGC Partners, Inc.), Term Loan Credit Agreement (BGC Partners, Inc.)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its PropertyBorrowing Base Oil and Gas Properties, except or any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 7.01 hereto and any renewals, rearrangements, amendments, modifications and/or extensions thereof, provided that, the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxestaxes, assessments assessments, or other governmental charges or levies not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) operators’, vendors’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness or which are incident to the exploration, but only if (i) payment development, operation, and maintenance of the obligations secured thereby is Borrower’s Oil and Gas Properties, not yet due overdue for a period of more than thirty days or is which are being Properly Contested; (ii) such Liens do not materially impair contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the value or use books of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting in favor of deposits operators and non-operators under joint operating agreements or pledges made similar contractual arrangements arising in the Ordinary Course ordinary course of Business the business of the Borrower to secure amounts owing, which amounts are not yet due or are being contested in good faith by appropriate proceedings, if such reserve as may be required by GAAP shall have been made therefor;
(f) Liens under production sales agreements, division orders, operating agreements, and other agreements customary in the oil and gas business for processing, producing, and selling hydrocarbons securing obligations not constituting Indebtedness and provided that such Liens do not secure obligations to deliver hydrocarbons at some future date without receiving full payment therefor within 90 days of delivery;
(g) pledges or deposits in the ordinary course of business or Liens in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, or other than any Lien imposed by ERISA;
(h) deposits to secure the performance of tenders, bids, trade contracts and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants servitudes, permits, conditions, covenants, exceptions, or other agreements of record, survey and other non-monetary title exceptions reservations and other similar charges or encumbrances on Real Estateencumbrances, defects, irregularities, and deficiencies in title affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course of business conduct of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qj) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds relating to such judgments;
(k) Liens securing Indebtedness permitted under Section 7.03(e); provided that, (i) operating leases with respect to assets which are such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)acquisition; and
(ul) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)the Texaco Lien.
Appears in 2 contracts
Sources: Credit Agreement (Gulfport Energy Corp), Secured Reducing Credit Agreement (Gulfport Energy Corp)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any assets (including stock or other securities of its Propertyany person, including any Subsidiary) at the time owned by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, “Permitted Liens”):for:
(a) Liens in favor granted pursuant to the Loan Documents and Liens granted pursuant to Section 10(c) of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentthe Escrow Agreement;
(b) Liens customary rights of setoff and liens upon deposits of cash in accounts in favor of banks or other depository institutions in which such cash is maintained in the ordinary course of business, securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion payment of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof fees, indemnities, charges for returning items and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)other similar obligations;
(c) Liens for Taxessecuring obligations under the Existing Indenture Documents, assessments or other governmental charges not yet delinquent or being Properly Contestedsubject to Section 6.10(b);
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law on the A/R Securitization Facility Collateral and in the Ordinary Course of BusinessReceivables Equity granted pursuant to the A/R Securitization Facility Documents, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtsubject to Section 6.10(b);
(e) Liens consisting of deposits or pledges made in granted pursuant to the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance Interim DIP Order and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of BusinessFinal DIP Order;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law imposed by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as Governmental Authority for (i) such Liens are in existence for less than twenty Specified Taxes (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunderranking junior to the Liens under the Interim DIP Order and the Final DIP Order, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statuteas applicable);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; providedany other taxes, assessments or charges that, in the case of this clause (ii) are not yet due or that no Lien has been filed with respect thereto or, are being contested in good faith and by appropriate proceedings if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonBorrowers in accordance with GAAP;
(qg) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmens’, storage, landlord, and repairmen’s Liens and other similar Liens arising from in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) not yet due or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Borrowers in accordance with GAAP;
(h) Liens incurred or pledges or deposits made (i) operating to secure obligations incurred in the ordinary course of business under workers’ compensation laws, unemployment insurance or other similar social security legislation (other than in respect of employee benefit plans subject to ERISA) or (ii) to any supplier of the Borrowers to the extent such deposit was set forth in the Approved Budget;
(i) zoning restrictions, easements, licenses, or other restrictions on the use of any real estate (including leasehold title), in each case which do not interfere with or affect in any material respect the ordinary course conduct of the business of the Borrowers and their Subsidiaries;
(j) deposits of money securing leases to which a Borrower is a party as lessee made in the ordinary course of business;
(k) solely on Real Property, Permitted Real Estate Encumbrances;
(l) Liens in existence on the Effective Date securing performance bonds, surety bonds, public or statutory obligations, regulatory obligations or with respect to assets which workers’ compensation claims, and other bonds or obligations of like nature, in each case that are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located existence on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Effective Date; and
(um) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)precautionary Lien filings regarding operating leases.
Appears in 2 contracts
Sources: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.), Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender pursuant to any Loan Document (including Liens securing any Incremental Facility or any other Secured Party arising pursuant hereto or under any other Loan DocumentRefinancing Facility governed by this Agreement);
(b) Liens securing fixed assets existing on the date hereof and (including in connection with Permitted Purchase Money Debtother than any individual Lien that secures obligations of less than $2,000,000) to secure a portion of the purchase price set forth on Schedule 7.01 and any renewals, extensions, modifications, restatements or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of replacements thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(s)benefited thereby is permitted by Section 7.03;
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due and payable or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f) (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust;
(g) easements, rights-of-way, zoning restrictions, other restrictions, covenants and other non-monetary encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i) Liens securing Indebtedness of the Borrower and its Restricted Subsidiaries permitted by Section 7.03(l); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such Lien, including replacement parts, accessories or enhancements that are affixed to any leased goods and other property financed by the same Person (i.e., cross-collateralization of such property) and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i))
(j) Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Borrower or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k) Liens on the property of the Borrower or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;
(l) Liens (including those arising from precautionary UCC financing statement filings and those which are security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(m) Liens securing Indebtedness permitted under Section 7.03(c), to the extent that the Indebtedness being refinanced was originally secured in accordance with this Section 7.01, provided that such Lien does not apply to any additional property or assets of the Borrower or any Restricted Subsidiary (other than property or assets within the scope of the original granting clause or the proceeds of the property or assets subject to such Lien);
(n) Liens securing Indebtedness or other obligations of a non-Guarantor Restricted Subsidiary to the Borrower or a Guarantor;
(o) leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose;
(p) (i) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (ii) contractual rights of setoff to the extent constituting Liens;
(q) Liens arising from (i) operating leases with respect on Capital Stock of any Unrestricted Subsidiary, solely to assets which are the extent such Capital Stock does not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofconstitute Collateral;
(r) Liens in favor of a collection bank an escrow agent arising under Section 4-210 an escrow arrangement incurred in connection with the issuance of notes with respect to the UCC on items in the course proceeds of collectionsuch notes and anticipated interest expenses with respect to such notes;
(s) Permitted Real Estate Encumbrances and Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiumson Excluded Assets;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including other Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); andIndebtedness or obligations of the Loan Parties in an aggregate amount at any time outstanding not to exceed $40,000,000;
(u) other subject to an ABL Intercreditor Agreement, Liens on Collateral securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).any ABL Facility;
Appears in 2 contracts
Sources: Credit Agreement (Contura Energy, Inc.), Credit Agreement (Contura Energy, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Senior Credit Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on SCHEDULE 8.01 and any renewals or extensions thereof, PROVIDED that the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by SECTION 8.03(c);
(c) Liens for Taxestaxes, assessments assessments, charges or other governmental charges government levies not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, and for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, but only if (i) payment adequate reserves with respect thereto are maintained on the books of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ ' compensation, unemployment insurance and other types of social security or similar legislation, or other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, tenders, bidstrade contracts, trade contracts liability to insurance carriers and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, contractual or arising as a result of progress payments under government contracts, warranty obligations and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges or encumbrances on Real Estateaffecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course of business conduct of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 2 contracts
Sources: Bridge Loan Agreement (Digitalnet Holdings Inc), Bridge Loan Agreement (Digitalnet Holdings Inc)
Liens. Create Create, incur, assume, suffer or suffer permit to exist any Lien upon or other encumbrance of any nature whatsoever on any of its Propertythe assets or capital stock of the Credit Parties or any Subsidiary of a Credit Party, except now or hereafter owned, other than the following (collectively, “Permitted Liens”):
(a) Liens securing the payment of taxes or utility charges and which arise by operation of law, which Liens are either not yet delinquent or the validity of which is being contested in favor of Administrative Agentgood faith by appropriate proceedings, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentand as to which it shall have set aside on its books adequate reserves;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed deposits under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ workmen’s compensation, unemployment insurance and other types of social security or similar legislationlaws, or to secure the performance of bids, tenders, bids, trade contracts and leases (other than Debt)for the repayment of borrowed money) or Leases, or to secure statutory obligations, obligations or surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance appeal bonds, or arising as a result of progress payments under government contractsto secure indemnity, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants performance or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities bonds arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)business;
(nc) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made imposed by any Credit Party or any of its Subsidiaries in connection with any letter of intentlaw, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmenas banker’s, carriers’, warehousemen’s, landlords landlord’s, laborers’ or other like Liens arising mechanics’ liens, incurred by it in good faith in the Ordinary Course ordinary course of Business business, and Liens with respect to obligations which are judgments but only to the extent that (i) any such judgment does not due otherwise constitute an Event of Default pursuant to Section 8.01(m), and (ii) either (A) such Lien is not prior or senior to any of the Liens granted to the Secured Parties and/or the Administrative Agent pursuant to the Security Documents unless bonded in full to the Administrative Agent’s reasonable satisfaction, or (B) such Lien attaches solely to property of the Credit Parties, if any, with respect to which the Secured Parties and the Administrative Agent do not assert a Lien;
(d) security interests and Liens in favor of the Administrative Agent under the Security Documents;
(e) Capitalized Leases described in Section 7.01(c) and security interests granted by Purchase Money Security Agreements to the extent permitted by Section 7.01(c); provided that each such Lien shall at all times be limited solely to the item or items of property so acquired and identifiable proceeds thereof;
(f) restrictions, covenants, easements, rights of way and minor irregularities in title which do not and will not materially interfere with the occupation, use and enjoyment by any Credit Party or their Subsidiaries of such properties and assets in the normal course of its business as presently conducted (or with respect to after-acquired property, as intended to be conducted) or materially impair the value or transferability of such properties and assets for the purpose of such business;
(g) Liens securing the Indebtedness permitted by Section 7.01(e) to the extent set forth in said Schedule 7.01;
(h) any other Liens existing on the date hereof and described in Schedule 7.02 attached hereto;
(i) Liens assumed in connection with Indebtedness permitted by clause (i) or (ii) Properly Contested; providedof Section 7.01(h);
(j) licenses, leases or subleases of real estate granted to other Persons in the ordinary course of business which do not materially interfere with the Credit Parties’ conduct of their business or materially detract from the value of a Credit Party’s assets;
(k) Liens disclosed on the title reports delivered to the Administrative Agent on the date hereof and consented to by the Administrative Agent or the title policies delivered to the Administrative Agent on the Closing Date, provided that no Lien has been filed such Liens do not extend to assets or secure Indebtedness in addition to those existing on the Closing Date;
(l) transfer restrictions imposed by Applicable Law or noted on the certificate evidencing Equity Interests, and consented to by the Administrative Agent;
(m) present and future zoning laws, ordinances, resolutions, orders and regulations of all municipal, county, state or federal governments having jurisdiction over the property and the use of improvements thereon;
(n) any state of facts disclosed on the surveys delivered to the Administrative Agent on the Closing Date and, with respect thereto orto real property hereafter acquired, such state of facts as a current, accurate survey of the property would disclose, provided the same do not render title unmarketable or materially adversely affect the use of the property for its intended purposes;
(o) rights, if any such Lien shall have been filedany, a stay of enforcement of any such Lien shall be in effectutility company to construct and/or maintain lines, pipes, wires, cables, poles, conducts and distribution boxes and equipment in, over, under, and/or upon the property or any portion thereof, provided the same do not render title unmarketable;
(p) variations between record line and retaining walls; providedencroachments of adjoining premises upon the property, further that adequate reserves with respect thereto are maintained on provided the books of the applicable Personsame do not render title unmarketable;
(q) Liens arising the printed exclusions from (i) operating leases with respect to assets which are not owned by coverage listed in any Credit Party title commitment or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereoftitle insurance policy;
(r) Liens of with respect to any real property as to which a collection bank arising under Section 4-210 Credit Party or Subsidiary holds leasehold interest, the terms and conditions of the UCC lease giving rise to such leasehold interest, and any Liens on items the underlying fee interest of the lessor in the course of collection;such property; and
(s) Liens granted to secure Debt permitted under Section 10.1(m) such other title and survey exceptions as Administrative Agent has approved or may approve in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)writing in its reasonable discretion.
Appears in 2 contracts
Sources: Loan Agreement (Hemisphere Media Group, Inc.), Loan Agreement (Hemisphere Media Group, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (each a “Permitted Lien” and collectively, the “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(i) operating Liens securing capital leases with respect to assets which are permitted under Section 7.03(e); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rj) Liens of a collection bank arising under Section 4-210 on capital stock of the UCC on items in Guarantors securing the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Securities; and
(uk) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)on margin accounts established in connection with Swap Contracts permitted under Section 7.11.
Appears in 2 contracts
Sources: Credit Agreement (Western Gas Resources Inc), Credit Agreement (Western Gas Resources Inc)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any property or assets (including Equity Interests or other securities of its Propertyany Person, except including the following (collectivelyBorrower or any Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, “Permitted Liens”):except:
(a) Liens on property or assets of the Borrower and the Subsidiaries existing on the date hereof and set forth in favor of Schedule 6.02 or reflected in the title insurance policies delivered to the Administrative Agent; provided that such Liens shall secure only those obligations which they secure on the date hereof and extensions, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentrenewals and replacements thereof permitted hereunder;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of any Lien created under the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Loan Documents;
(c) Liens for Taxesany Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or assets of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary, assessments as the case may be; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not apply to any other governmental charges not yet delinquent property or being Properly Contestedassets of Holdings, the Borrower or any Subsidiary and (iii) such Lien secures only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(d) Liens (other than Liens for Taxes taxes, assessments, water charges, sewer rents or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is governmental charges which are not yet due delinquent or is which are being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtcontested in compliance with Section 5.03;
(e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, suppliers’, construction or other like Liens consisting arising in the ordinary course of business and securing obligations which are (i) incident to the construction, operation, maintenance, repair, restoration or improvement of any property or asset and (ii) (A) not yet delinquent or (B) being contested in compliance with Section 5.03;
(f) Liens, pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under workers’ compliance with workmen’s compensation, unemployment insurance and other types of social security laws or similar legislation, or regulations;
(g) deposits to secure the performance of tenders, bids, trade contracts and (other than for Indebtedness), leases (other than DebtCapital Lease Obligations but including new store leases), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealbusiness;
(h) zoning restrictions, easements, rights-of-way, restrictions, covenants or other agreements restrictions on use of record, survey real property and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with Liens incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the Credit Parties and their respective property subject thereto or materially interfere with the ordinary conduct of the business of the Borrower or any of the Subsidiaries;
(i) normal and customary rights of setoff upon deposits purchase money security interests in favor of depository institutionsreal property, Liens of a collecting bank on Payment Items improvements thereto or equipment hereafter acquired (or, in the course case of collectionimprovements, constructed) by the Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the Indebtedness secured thereby is created, within 90 days after such acquisition (or construction), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost or the fair market value of such real property, improvements or equipment at the time of such acquisition (or construction) and (iv) such security interests do not apply to any other similar Liens granted in property or assets of the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsBorrower or any Subsidiary;
(ij) judgment Liens on (A) acquired Property securing Debt permitted judgments not constituting an Event of Default under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)7.01;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted collecting banks arising under Section 10.1(b)(i);
4-210 of the New York UCC and Liens (lincluding the right of set-off) Liens in favor of customs and revenue authorities a bank or other depository institution arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goodslaw encumbering deposits;
(ml) any interest or title of a lessor or sub-lessor licensor under any operating lease of Real Estate made or license entered into by any Credit Loan Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business and covering only the assets leased or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)licensed; and
(um) other Liens securing obligations having liabilities in an aggregate amount not exceeding Five Million Dollars (to exceed $5,000,000)5,000,000 at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Fairway Group Holdings Corp), Credit Agreement (Fairway Group Holdings Corp)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on SCHEDULE 7.01 and any renewals or extensions thereof, PROVIDED that the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof benefited thereby is not prohibited by SECTION 7.03, or if so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sprohibited, is permitted by SECTION 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(e) Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) Liens incurred or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar charges or encumbrances which, in each case are granted, entered into or created in the ordinary course of business of such Person;
(qh) attachments or Liens arising from securing judgments for the payment of money in an aggregate amount in excess of the Threshold Amount (except to the extent covered by independent third-party insurance as to which the insurer has acknowledged in writing its obligation to cover), unless any such judgment remains undischarged for a period of more than 60 consecutive days during which execution is not effectively stayed;
(i) operating leases with respect Liens pursuant to assets which are any Mortgage or Mortgage Note Agreement or any "Security Document", as that term is defined in the Mortgage Note Agreement;
(j) Liens on property not owned covered by any Credit Mortgage securing obligations under Swap Contracts not exceeding at any time an aggregate amount for all such Liens equal to one percent (1%) of Net Tangible Assets;
(k) Liens on (A) property or shares of equity interests of another Person at the time such other Person becomes a Subsidiary, or (B) property at the time any Loan Party or Subsidiary acquires such property, including any acquisition by means of merger or consolidation with or into such Loan Party or Subsidiary and which is permitted by SECTION 7.04; PROVIDED (i) such Liens were not created in contemplation of the precautionary UCC financing statement filings in respect thereof and acquisition of such Person or such property, (ii) equipment or such resultant Subsidiary, if it constitutes a Material Subsidiary, delivers, substantially contemporaneous with its acquisition, a Guarantee and other materials which are instruments and documents required to be delivered pursuant to SECTION 6.13, (iii) such Liens do not encumber property other than property owned by any Credit Party such Material Subsidiary or Subsidiary located on the premises property then acquired, at the time of such Credit Party its acquisition, (iv) the aggregate amount of Indebtedness secured thereby is permitted to be created, incurred, assumed or Subsidiary permitted to exist pursuant to SECTION 7.03, and (but not v) the MLP shall have demonstrated in connection withwriting to the reasonable satisfaction of the Required Lenders that the secured Indebtedness created, incurred, assumed or as part of, permitted to exist referred to the financing thereofpreceding clause (iv) from time was permitted pursuant to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofSECTION 7.03;
(rl) Liens on property or assets of any Subsidiary (other than a collection bank arising under Section 4-210 Borrower) securing Indebtedness of such Subsidiary owing to a Borrower or a Guarantor; PROVIDED that the UCC on items in Operating Partnership may create Liens to secure any Indebtedness owed to the course of collection;MLP.
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(um) other Liens securing obligations having an PROVIDED that notwithstanding the foregoing, in no event will the aggregate amount not exceeding Five Million Dollars ($5,000,000)of Indebtedness secured thereby exceed at any time an amount equal to 1% of Net Tangible Assets.
Appears in 2 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), 364 Day Credit Agreement (Enbridge Energy Limited Partnership)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) existing on the Restatement Date and listed on Schedule 7.01 to secure a portion this Agreement and any renewals or extensions thereof; provided that the property covered thereby is not increased, the amount of the purchase price Indebtedness secured thereby is not increased, and any renewal or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition extension of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(s)benefited thereby is permitted under this Agreement;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other encumbrances affecting real property which do not, taken as a whole, materially detract from the value of the Mortgaged Properties subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) judgment Liens arising from not giving rise to an Event of Default;
(i) operating leases any Lien existing on any asset (other than stock of a Subsidiary) prior to acquisition thereof by the Borrower or a Subsidiary, and not created in contemplation of such acquisition; provided that (i) no such Lien shall be extended to cover property other than the asset being acquired, (ii) such Lien was not created in contemplation of or in connection with such acquisition, (iii) the Indebtedness thereby secured is permitted by Section 7.04(e) or 7.04(h);
(j) Liens securing Capitalized Lease obligations; provided that the Indebtedness in respect to assets which are not owned of such Capitalized Lease is permitted under Section 7.04(e);
(k) Purchase money Liens upon or in any property acquired by any Credit Party Borrower or any Subsidiary and of its Subsidiaries to secure the precautionary UCC financing statement filings in respect thereof deferred portion of the purchase price of such property or to secure Indebtedness incurred to finance the acquisition of such property; provided that (i) no such Lien shall be extended to cover property other than the property being acquired, and (ii) equipment the Indebtedness thereby secured is permitted by Section 7.04(e);
(l) Liens reserved in or other materials exercisable under any lease or sublease to which are the Borrower or a Subsidiary is a lessee which secure the payment of rent or compliance with the terms of such lease or sublease; provided, that the rent under such lease or sublease is not owned by any Credit Party then overdue and the Borrower or Subsidiary located on is in material compliance with the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business terms and the precautionary UCC financing statement filings in respect conditions thereof;
(rm) Liens any interest or title of a collection bank arising lessor under Section 4-210 of any lease entered into by the UCC on items Borrower or any Subsidiary in the ordinary course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with its business and covering only the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)assets so leased; and
(un) other Liens securing obligations having an incurred in the ordinary course of business in connection with margin requirements under Lender Hedging Agreements not to exceed in the aggregate amount not exceeding Five Million Dollars ($5,000,000)5,000,000 at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Markwest Hydrocarbon Inc), Credit Agreement (Markwest Energy Partners L P)
Liens. Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “Permitted Liens”):
(a) Liens (i) in favor of Administrative Agent, LC Issuer, Swing Line any Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentDocument and (ii) subject to the Term Loan Intercreditor Agreement, in favor of the Term Loan Agent;
(b) Purchase Money Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)permitted under this Agreement;
(c) Liens arising as a matter of law for Taxes, assessments or other governmental charges Taxes not yet delinquent due or payable or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISAERISA or pursuant to any Environmental Law) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or payable or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g9.2(g)), performance bonds, or arising as a result of progress payments under government contracts, obligations owing to credit card processors and other obligations of a like nature incurred in the Ordinary Course of Business, in each case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any portion of the Collateral on account thereof;
(f) Liens arising as a matter of law in the Ordinary Course of Business which that are subject to Third Party Claimant Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement not constituting an Event of such Liens is and continues to be effectively stayed and bonded on appealDefault under Section 11.1(h);
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which that do not secure any monetary obligation and do not interfere with the ordinary course Ordinary Course of business of the Credit Parties and their respective SubsidiariesBusiness;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(j) (i) Liens on (A) acquired Property other than Collateral securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition9.1(f); provided that such Liens (xi) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (yii) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (ziii) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)Subsidiaries;
(k) So long as Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by any Credit Party or any of its Subsidiaries in the Intercreditor Agreement is in effect, Liens in favor Ordinary Course of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i)Business;
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, only to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited purported Liens evidenced by the terms filing of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising precautionary Financing Statements relating solely to operating leases of personal property entered into in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonBusiness;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(tp) Liens existing on the Closing Date and listed on Schedule 10.29.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l9.1(l);
(q) Liens incurred under or permitted pursuant to the Term Loan Debt Documents;
(r) Liens on cash collateral in favor of Regions Bank securing the Debt of Borrowers evidenced by (i) the Existing Letter of Credit in an aggregate amount not to exceed $29,111.78, (ii) commercial credit card program with Regions Bank in an aggregate amount not to exceed $315,000 and (iii) automated clearinghouse programs with Regions Bank in an aggregate amount not to exceed $1,150,000; provided that, in each case, upon satisfaction of the Borrowers’ obligations to Regions Bank in respect of the Existing Letter of Credit, commercial credit card program with Regions Bank and automated clearinghouse programs with Regions Bank, in each case, such cash collateral shall have been returned to the Borrowers in accordance with the terms of that certain pay-off letter agreement dated as of August 9, 2023 between the Borrowers and Regions Bank;
(s) other Liens securing Debt or other obligations permitted pursuant to this Agreement in an aggregate principal amount at any one time outstanding not to exceed $2,500,000; and
(ut) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars solely to the extent constituting Liens, “Permitted Asset Dispositions” permitted under clause ($5,000,000d)(3), (4) or (5) of such term.
Appears in 2 contracts
Sources: Credit Agreement (BRC Inc.), Credit Agreement (BRC Inc.)
Liens. Create The Parent will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer permit to exist any Lien upon on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of its Propertyany thereof, except the following (collectively, “Permitted Liens”):except:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or created under any other Loan Documentthe Security Documents;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion any Lien on any property or asset of the purchase price Parent or financing thereof so long as such Liens are incurred not more than ten (10) days after any Restricted Subsidiary existing on the later of date hereof and set forth in Schedule 8.02, provided that (i) the acquisition such Lien shall not apply to any other property or asset of the fixed asset(s) which were the subject thereof Parent or any Restricted Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the incurrence of Permitted Purchase Money Debt in connection with date hereof and extensions, renewals and replacements thereof that do not increase the funding or financing of such fixed asset(s)outstanding principal amount thereof;
(c) Liens imposed by any Governmental Authority for Taxestaxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; delinquent (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course case of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance property taxes and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred assessments not exceeding $2,000,000 in the Ordinary Course of Business;
(faggregate more than 90 days overdue) Liens arising as a matter of law in the Ordinary Course of Business or which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, appropriate proceedings if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonParent or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(qd) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens, and vendors’ Liens imposed by statute or common law not securing the repayment of Indebtedness, arising from in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings and Liens securing judgments (including, without limitation, pre-judgment attachments) but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (j) of Article IX;
(e) pledges or deposits under (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary worker’s compensation (including, without limitation, worker’s compensation insurance programs), unemployment insurance and the precautionary UCC financing statement filings in respect thereof other social security legislation and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection withgeneral liability, or as part ofautomobile liability, the financing thereof) from time to time in the Ordinary Course of Business excess liability, fiduciary liability, directors and the precautionary UCC financing statement filings in respect thereofofficers liability and foreign liability insurance programs;
(rf) Liens deposits to secure the performance of bids, tenders, trade contracts (other than for borrowed money), leases (other than capital leases), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a collection bank arising under Section 4-210 of the UCC on items like nature incurred in the ordinary course of collectionbusiness;
(sg) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of property or imperfections in title thereto which, in the aggregate, are not material in amount, and which do not, in the aggregate, materially detract from the value of the property of the Parent and its Restricted Subsidiaries or materially interfere with the ordinary conduct of the business of the Parent or any of its Restricted Subsidiaries; Credit Agreement
(h) Liens granted consisting of bankers’ liens and rights of setoff, in each case, arising by operation of law or (except to secure Debt permitted under Section 10.1(mthe extent securing Indebtedness) by contract in connection with the financing ordinary course of insurance premiums;
(t) business, and Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)documents presented in letters of credit drawings; and
(ui) Liens on fixed or capital assets acquired, constructed or improved by the Parent or any Restricted Subsidiary, provided that (i) such Liens secure Indebtedness permitted by Section 8.01(e), (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Parent or any Subsidiary;
(j) Liens on property of Restricted Subsidiaries that are not Obligors, so long as such Liens do not extend to cover property of any Obligor;
(k) licenses, on a non-exclusive basis (or, solely with respect to any territory where neither the Parent nor any Restricted Subsidiary is doing business, on an exclusive basis) of rights in the intellectual property of the Parent or any Restricted Subsidiary granted in the ordinary course of business;
(l) Liens on the Equity Interests of, and on the property or assets of, a Project Entity securing Non-Recourse Project Indebtedness;
(m) Liens on property purchased or built pursuant to any engineering, construction, procurement, manufacturing, equipment or supply contract (each, a “Customer Contract”) with a customer (including any Governmental Authority) in favor of such customer, which Liens arise in the ordinary course of business and secure the performance obligations having an of the Parent or the relevant Restricted Subsidiary (as applicable) under such Customer Contract;
(n) Liens constituting security referred to in paragraphs (c)(ii), (c)(iii) and (g) of Section 8.01; and
(o) additional Liens upon real or personal property created after the date hereof, provided that the aggregate amount of obligations secured thereby shall not exceeding Five Million Dollars (exceed $5,000,000)50,000,000.
Appears in 1 contract
Sources: Guaranty and Suretyship Agreement
Liens. Create Holdings and the Borrowers will not, nor will they cause or suffer permit any of the Subsidiaries to, create, incur, assume or permit to exist any Lien upon on any property or assets (including Equity Interests or other securities of its Propertyany person, except the following (collectivelyincluding any Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, “Permitted Liens”):except:
(a) Liens on property or assets of the U.S. Borrower and its Subsidiaries existing on the date hereof and set forth in favor of Administrative AgentSchedule 6.02(a); provided that such Liens shall secure only those obligations which they secure on the date hereof and extensions, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentrenewals and replacements thereof permitted hereunder;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of any Lien created under the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Loan Documents;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the U.S. Borrower or any Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition and (ii) such Lien does not apply to any other property or assets of the U.S. Borrower or any Subsidiary;
(d) Liens for Taxestaxes, fees, assessments or other governmental charges not yet delinquent due, or if material, which are being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and contested in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtcompliance with Section 5.03;
(e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens consisting arising in the ordinary course of business and securing obligations that are not due and payable, or if material, which are being contested in compliance with Section 5.03;
(f) pledges and deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under workers’ compliance with workmen’s compensation, unemployment insurance and other types of social security laws or similar legislation, or regulations;
(g) deposits to secure the performance of tenders, bids, trade contracts and (other than for Indebtedness), leases (other than DebtCapital Lease Obligations), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealbusiness;
(h) zoning restrictions, easements, rights-of-way, restrictions, covenants or other agreements restrictions on use of record, survey and other non-monetary title exceptions real property and other similar charges or encumbrances on Real Estate, which do not interfere with incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the Credit Parties and their respective property subject thereto or interfere with the ordinary conduct of the business of the U.S. Borrower or any of its Subsidiaries;
(i) normal and customary rights Liens arising out of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable judgments or awards in respect of depositary accountswhich Holdings, the U.S. Borrower or any of the Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings;
(ij) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred investments made by Melody in connection withwith the Melody Loan Arbitrage Facility to secure Indebtedness under the Melody Loan Arbitrage Facility, or in anticipation of, a Person becoming a Subsidiary or if such investments were acquired by Melody with the acquisition of the Property subject to such Lien; (y) are applicable only to the Property proceeds of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)Indebtedness;
(k) So long Liens on investments made by the U.S. Borrower or CBRE Inc. in connection with the CBRE Loan Arbitrage Facility to secure Indebtedness under the CBRE Loan Arbitrage Facility, if such investments were acquired by the U.S. Borrower or CBRE Inc., as the Intercreditor Agreement is in effectcase may be, Liens in favor with the proceeds of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i)such Indebtedness;
(l) Liens in favor of customs on mortgage loans originated and revenue authorities arising as a matter of Applicable Law owned or held by Melody or any Mortgage Banking Subsidiary pursuant to secure payment of customs duties any Melody Mortgage Warehousing Facility or the Melody Repo Arrangement, and Liens in connection with the importation of GoodsMelody Lending Program Securities;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and Receivables securing any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)Permitted Receivables Securitization;
(n) Liens solely any Lien existing on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by property or asset of any Credit Party person that exists at the time such person becomes a Subsidiary; provided that (i) such Lien was not created in contemplation of or any of its Subsidiaries in connection with such acquisition and (ii) such Lien does not apply to any letter property or assets of intent, the U.S. Borrower or purchase agreement permitted hereunderany other Subsidiary;
(o) leases in respect Liens arising solely by virtue of real property any statutory, common law or contractual provision relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution or relating to Liens on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documentsbrokerage accounts;
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books assets or Equity Interests of the applicable Personan Investment Subsidiary to secure Exempt Construction Loans, Non-Recourse Indebtedness and Guarantees thereof;
(q) Liens arising from on the Collateral securing Indebtedness otherwise permitted to be incurred under this Agreement (such Indebtedness being referred to herein as “Additional Secured Indebtedness”), which Liens may be pari passu with, or junior to, the Liens granted to the Secured Parties under the Security Documents, pursuant to an intercreditor agreement entered into by the holders of such Additional Secured Indebtedness, or a trustee or other representative on their behalf, the Administrative Agent and the Collateral Agent for the benefit of the Secured Parties, which shall be substantially in the form of (i) operating leases in the case of Liens intended to rank pari passu with respect the Liens securing the Obligations, Exhibit H-1 or such other form as shall be approved by the Administrative Agent (the “First Lien Intercreditor Agreement”) or (ii) in the case of Liens intended to assets which are not owned rank junior to the Liens securing the Obligations, Exhibit H-2 or such other form as shall be approved by the Administrative Agent (the “Second Lien Intercreditor Agreement”); provided that such Liens shall be permitted only if (i) such Additional Secured Indebtedness is (x) (A) used to finance, or is otherwise incurred in connection with, a Permitted Acquisition and (B) after giving effect thereto, the Leverage Ratio would be less than 3.25 to 1.00 or (y) used to prepay Term Loans of any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof Class pursuant to Section 2.12 and (ii) equipment such Additional Secured Indebtedness (x) matures on or after the 180th day following the latest final maturity date for any of the Term Loans, (y) has no scheduled amortization, payments of principal, sinking fund payments or similar scheduled payments (other materials which are not owned by than regularly scheduled payments of interest) prior to the 180th day following the latest final maturity date for any Credit Party or Subsidiary located on of the premises of such Credit Party or Subsidiary Term Loans and (but not in connection with, or as part of, the financing thereofz) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofcontains no financial “maintenance” covenants;
(r) Liens any Lien in relation to personal property acquired by the New Zealand Borrower in the ordinary course of its normal business; provided that such Lien shall be permitted only if (i) it is given by the New Zealand Borrower (as buyer) in favor of a collection bank arising under Section 4-210 seller of the UCC on items in personal property, (ii) it secures (and only secures) all or part of the course purchase price for the personal property and (iii) it is discharged within 60 days of collectionits creation;
(s) Liens granted any security in relation to personal property acquired by the New Zealand Borrower that is created or provided for by (i) a transfer of an account receivable or chattel paper, (ii) a lease for a term of more than 1 year, or (iii) a commercial consignment, that does not secure Debt permitted under payment or performance of an obligation (all terms used in paragraphs (r) and (s) of this Section 10.1(m) 6.02 and not defined in connection with this Agreement have the financing of insurance premiums;
(t) Liens existing on meaning specified thereto in the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(lNew Zealand Personal Property Securities Act 1999); and
(ut) other Liens securing not permitted by the foregoing; provided that, at the time of the incurrence thereof, neither the obligations having an secured thereby nor the aggregate amount not exceeding Five Million Dollars fair market value of the assets subject thereto shall exceed 5% of Total Assets at the time ($5,000,000provided further that no Lien may be incurred by a Loan Party pursuant to this paragraph (t) if, at the time thereof and after giving effect thereto, the obligations secured by all such Liens incurred by Loan Parties pursuant to this paragraph (t) or the fair market value of the assets subject thereto would exceed 2.5% of Total Assets at the time).
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty or assets, except whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including existing on the date hereof and listed on Schedule 7.01 and any renewals, replacements or extensions thereof, provided that the property covered thereby is not changed in connection with Permitted Purchase Money Debt) to secure a portion of any material respect and the purchase price amount secured or financing thereof so long benefitted thereby is not increased except as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(scontemplated by Section 7.02(b);
(c) Liens for Taxestaxes, assessments assessments, charges or other governmental charges levies not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Statutory Liens (of carriers, warehousemen, mechanics, materialmen, repairmen or other than like Liens for Taxes or imposed under ERISA) arising as a matter of by law and arising in the Ordinary Course ordinary course of Businessbusiness which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings diligently conducted, but only if (i) payment adequate reserves with respect thereto are maintained on the books of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, other than any Lien imposed by any Plan or the PBGC under ERISA;
(f) pledges or deposits to secure the performance of tenders, bids, trade contracts and leases (other than DebtIndebtedness), licenses, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless litigation to the extent not permitted by Section 10.2(g7.01(h)), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryeasements, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easementszoning restrictions, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges or encumbrances on Real Estateand title defects affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary course conduct of the business of the Credit Parties and their respective Subsidiariesapplicable Person;
(ih) normal and customary rights Liens securing judgments for the payment of setoff upon deposits in favor money not constituting an Event of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and Default under Section 8.01(h) or securing appeal or other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountssurety bonds related to such judgments;
(i) Liens on (A) acquired Property securing Debt Indebtedness permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition7.02(e); provided that (i) such Liens (x) are do not incurred in connection withat any time encumber any property other than the property financed by such Indebtedness, or in anticipation ofexcept for replacements, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only additions and accessions to the Property property that are affixed or incorporated into the property covered by such Lien or financed with the proceeds of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries Indebtedness and (ii) the Indebtedness secured thereby does not exceed on the date of acquisition the cost or fair market value, whichever is lower, of the property being acquired, constructed or improved plus the amount of a reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred in the extension, renewal or replacement;
(j) Liens securing Debt Indebtedness permitted under Section 10.1(f)(ii)7.02(i) to the extent such Liens shall be restricted to the assets of the Foreign Subsidiary incurring such Indebtedness;
(k) So long as any Lien existing on any property or asset prior to the Intercreditor Agreement Acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary and any renewals, replacements or extensions thereof pursuant to Indebtedness permitted by Section 7.02(n), provided that (i) such Lien is not created in effectcontemplation of or in connection with such Acquisition or such Person becoming a Subsidiary, Liens in favor (ii) such Lien shall not apply to any other property or assets of the Term Loan Agent with respect to Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations that it secures on the Debt permitted under Section 10.1(b)(i)date of such Acquisition or the date such Person becomes a Subsidiary and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, except by the amount of a reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred in the extension, renewal or replacement;
(l) Liens in favor arising solely by virtue of customs and revenue authorities arising as a matter any statutory or common law provision relating to banker’s liens, rights of Applicable Law to secure payment of customs duties in connection with the importation of Goodssetoff or similar rights;
(m) any interest or of title of a lessor or sub-lessor under any lease of Real Estate made licensor, and leases, subleases, royalties, licenses or sublicenses granted by any Credit Party the Borrower or any of its Subsidiaries as lessee or sub-lesseeto others, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted i) in such lease each case in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business or sublease or similar agreement or statute)(ii) in connection with the Permitted International Restructuring Transaction;
(n) subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld), Liens, including anti-assignment provisions, in favor of a landlord on leases and leasehold improvements with respect to leased premises, and Liens on cash and other assets securing performance thereunder; and
(o) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits or other similar escrow arrangements made by any Credit Party the Borrower or any of its Subsidiaries in connection with any letter of intentactual or proposed Investment, Acquisition, or purchase agreement Disposition, in each case permitted hereunder;
(op) leases in respect Liens arising out of real property on which facilities owned conditional sale, title retention, consignment or leased similar arrangements for sale of goods entered into by any Credit Party the Borrower or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Personbusiness permitted by this Agreement;
(q) Liens arising from (i) operating leases the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing or discharging Indebtedness issued pursuant to an indenture, but only if such defeasing or discharging of Indebtedness is not prohibited under this Agreement; provided that such Lien covers proceeds in an aggregate amount necessary solely to defease or discharge the principal, interest, premium, if any, and, if required by the terms of the relevant indenture, fees, costs and expenses due in connection with respect to assets which are not owned by any Credit Party the defeasance or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises discharge of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;Indebtedness; and
(r) Liens of a collection bank arising under Section 4-210 on assets of the UCC on items in Borrower and its Subsidiaries not otherwise permitted above so long as the course aggregate principal amount of collection;
(s) the Indebtedness and other obligations subject to such Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount does not exceeding Five Million Dollars (at any time exceed $5,000,000)20,000,000.
Appears in 1 contract
Sources: Credit Agreement (Quidel Corp /De/)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, with such Liens described below being referred to herein as “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan DocumentDocument securing the Obligations;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price date hereof and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not broadened, (ii) the incurrence amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(s)benefited thereby are not renewed or extended;
(c) Liens for Taxestaxes, fees, assessments or other governmental charges charges, not yet due or which are not delinquent or being Properly Contestedremain payable without penalty, or to the extent non-payment thereof is permitted by Section 6.04; provided that no notice of lien has been filed or recorded under the Code or other applicable Law;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due delinquent or (ii) Properly Contested; provided, that no Lien has been filed with respect which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that and for which adequate reserves with respect thereto are maintained on the books of the applicable person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than surety bonds related to judgments or litigation, unless such judgment or litigation related surety bonds are otherwise expressly permitted hereunder) performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property of the Loan Parties which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qh) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds in respect thereof; provided that enforcement of such Liens is effectively stayed;
(i) operating leases with respect to assets which are not owned by any Credit Party Liens securing Indebtedness permitted under Section 7.03(c);
(j) Liens on Warehousing Collateral securing the Warehousing Facilities (or any Subsidiary of them);
(k) Liens and renewals and extensions thereof, securing Indebtedness permitted under Section 7.03(c); provided that (i) such Liens do not at any time encumber property other than the precautionary UCC financing statement filings in respect thereof property financed by such Indebtedness, and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned fair market value, whichever is lower, of the property being acquired on the date of acquisition; and
(l) Liens on the cash value of insurance policies and renewals and extensions thereof, with respect to financing arrangements entered into by any Credit Party or Subsidiary located on of the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time Loan Parties in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the ordinary course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) business in connection with the financing purchase and maintenance of such insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)policies.
Appears in 1 contract
Sources: Credit Agreement (HFF, Inc.)
Liens. Create No Credit Party shall, and no Credit Party shall permit or cause any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon lien upon, in or against, or pledge of, any of the Collateral or any of its Propertyproperties or assets, whether now owned or hereafter acquired, except the following (collectively, “"Permitted Liens”"):
(a) Liens under the Loan Documents or otherwise arising in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentfor the benefit of itself and Lenders;
(b) Liens securing fixed assets (including imposed by law for taxes, assessments or charges of any Governmental Authority for claims not yet due or which are being contested in connection good faith by appropriate proceedings and with Permitted Purchase Money Debt) respect to secure a portion of the purchase price which adequate reserves or financing thereof so long as other appropriate provisions are being maintained by such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt Person in connection accordance with the funding or financing of such fixed asset(s)GAAP;
(c) (i) statutory Liens of landlords, and of carriers, warehousemen, mechanics and/or materialmen, and (ii) other Liens imposed by law or that arise by operation of law in the ordinary course of business from the date of creation thereof, in each case of the foregoing clauses (i) and (ii) only for Taxes, assessments amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other governmental charges not yet delinquent or appropriate provisions are being Properly Contestedmaintained by such Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes incurred or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course ordinary course of Business business (including, without limitation, surety bonds and appeal bonds) in connection with, or to secure payment of, obligations under with workers’ ' compensation, unemployment insurance and other types of social security or similar legislation, benefits or to secure the performance of tenders, bids, trade leases, contracts and leases (other than Debtfor the repayment of Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, obligations and other obligations of a like nature incurred similar obligations;
(e) purchase money Liens securing Indebtedness and Liens arising under Capital Leases in each case (i) permitted under Section 7.2(c) and (ii) to the Ordinary Course of Businessextent such Liens attach only to the subject Property;
(f) Liens arising as a matter any attachment or judgment Lien not otherwise constituting an Event of law in the Ordinary Course of Business which are subject to Third Party AgreementsDefault;
(g) Liens arising as a matter easements, rights of law by virtue way, restrictions, zoning ordinances, reservations, covenants and other similar charges, title exceptions or encumbrances relating to real property of a judgment or judicial order against the Credit Parties that do not interfere in any Credit Party or Subsidiary, material respect with the ordinary conduct of the business of Borrower or any Property of a Credit Party its Subsidiaries or Subsidiary, as long as (i) such Liens are result in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) material diminution in value of the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealCollateral;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances Liens disclosed on Real Estate, which do not interfere with the ordinary course of business Schedule 7.3 as of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;Closing Date; and
(i) Liens on (Asecuring Refinancing Indebtedness permitted by Section 7.2(f) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunderthe Indebtedness being extended, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intentrenewed, substituted, refinanced, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased replaced was secured by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no a Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under this Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)7.3.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Trover Solutions Inc)
Liens. Create Create, incur, assume or suffer permit to exist any Lien upon on any rights, title or interest in any property or assets (including stock or other securities of its Propertyany person, including the Borrower and any Subsidiary) whether now owned or existing or hereafter acquired or arising, or on any income or revenues or rights in respect of any thereof, except the following (collectively, “Permitted Liens”):
(a) Liens on property or assets of the Loan Parties and the Subsidiaries existing on the Closing Date and, in favor each case, set forth on Schedule 6.02(a) or, to the extent not listed on Schedule 6.02(a), where such Liens do not attach to any Collateral and such property or assets have a fair market value that does not exceed $10.0 million in the aggregate, and any modifications, replacements, renewals or extensions thereof; provided that such Liens shall secure only those obligations that they secure on the Closing Date (and any Permitted Refinancing Indebtedness in respect of Administrative Agent, LC Issuer, Swing Line Lender such obligations permitted by Section 6.01(a)) and shall not subsequently apply to any other property or assets of the Borrower or any Subsidiary other Secured Party arising pursuant hereto than (A) after-acquired property that is affixed or under any other Loan Documentincorporated into the property covered by such Lien, and (B) proceeds and products thereof;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of any Lien created under the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Loan Documents;
(c) [reserved];
(d) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent or that are being Properly Contestedcontested in compliance with Section 5.03 (except that Borrower shall nonetheless cause any Lien for Taxes that is being contested in compliance with Section 5.03 to be “omitted” as an exception in the Title Policy);
(de) Liens imposed by law (other than Liens for Taxes or Liens imposed under pursuant to Section 401(a)(29) or 412(n) of the Code or by ERISA) ), including landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising as a matter in the ordinary course of law business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Ordinary Course of Business, but only if Borrower or any Subsidiary shall have set aside on its books reserves in accordance with GAAP (except that Borrower shall nonetheless cause any Lien for Taxes that is being contested in compliance with Section 5.03 to be “omitted” as an exception in the Title Policy);
(f) (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such pledges and deposits and other Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, compliance with the Federal Employers Liability Act or to secure payment of, obligations under any other workers’ compensation, unemployment insurance and other types of social security laws or similar legislationregulations and deposits made in the ordinary course of business securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations, and (ii) pledges and deposits and other Liens securing liability to any person for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary;
(g) deposits made and other Liens granted, in each case, in the ordinary course of business to secure the performance of tenders, bids, trade contracts and (other than for Indebtedness), leases (other than DebtCapital Lease Obligations), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance and return of money bonds, or arising as a result of progress payments under government contracts, agreements with utilities, and other obligations of a like nature (exclusive of obligations for the payment of borrowed money or, unless permitted by Section 6.01(f), other Indebtedness) incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law business, including those incurred to secure health, safety and environmental obligations in the Ordinary Course ordinary course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appealbusiness;
(h) solely to the extent first arising after the date of issuance of the final Title Policies, (i) zoning restrictions, survey exceptions, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments, rights-of-wayway covenants, restrictionsconditions, covenants restrictions and declarations on or other with respect to the use of Real Property, servicing agreements, development agreements, site plan agreements of record, survey and other non-monetary title exceptions and other similar charges encumbrances incurred in the ordinary course of business (and not securing any Indebtedness) and title defects or encumbrances on Real Estateirregularities that, which in the case of each of the foregoing, are of a minor nature and that, individually or in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower or any Subsidiary, and (ii) Liens arising out of timber cutting, hauling or sales contracts incurred in the ordinary course of business;
(i) Liens securing Indebtedness permitted by Section 6.01(i) and Section 6.01(j); provided that any such Lien shall only encumber the property acquired or improved in connection with the incurrence of such Indebtedness and proceeds, improvements and replacements thereof;
(j) [reserved];
(k) any attachment or judgment Lien not constituting an Event of Default under Section 8.01(j); provided that such Liens, to the extent that they secure aggregate amounts of more than $25.0 million, shall be discharged within 60 days of the creation thereof (and Borrower shall nonetheless cause any such lien to be “omitted” as an exception in the Title Policy);
(l) Liens disclosed on the Title Policy approved by the Collateral Agent and the Required Lenders and delivered on or subsequent to the Closing Date pursuant to the Collateral Agreement, Section 5.10 or Schedule 5.13, and any replacement, extension or renewal of any such Lien; provided that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided, further, that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement;
(m) any interest or title of a lessor or sublessor under any leases or subleases (other than Capital Lease Obligations) entered into by the Borrower or any Subsidiary in the ordinary course of business;
(n) Liens that are customary contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Credit Parties Borrower or any Subsidiary, or (iii) relating to purchase orders and their respective Subsidiariesother agreements entered into with customers of the Borrower or any Subsidiary in the ordinary course of business;
(io) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable obligations in respect of depositary accountstrade related letters of credit, bank guarantees or similar obligations permitted under Section 6.01(f) or (m) and covering the property (or the documents of title in respect of such property) financed by such letters of credit, bank guarantees or similar obligations and the proceeds and products thereof;
(ip) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) arising solely by virtue of any statutory or (B) Property acquired pursuant common law provision relating to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection withbanker’s liens, rights of set off or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)similar rights;
(kq) So long as the Intercreditor Agreement is in effectleases or subleases, Liens in favor of the Term Loan Agent licenses or sublicenses (including with respect to intellectual property and software) granted by the Debt permitted under Section 10.1(b)(i)Borrower or any Subsidiary to others in the ordinary course of business, to the extent not otherwise prohibited by this Agreement and not interfering in any material respect with the business of Borrower or such Subsidiary;
(lr) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods;
(ms) Liens with respect to property or assets of any interest or title Subsidiary that is not a Loan Party securing Indebtedness of a lessor or sub-lessor Subsidiary that is not a Loan Party permitted under any lease Section 6.01(p);
(t) the prior rights of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, consignees and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease their lenders under consignment arrangements entered into in the ordinary course of business or sublease or similar agreement or statute)business;
(nu) agreements to subordinate any interest of the Borrower or any Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by the Borrower, or any of the Subsidiaries pursuant to an agreement entered into in the ordinary course of business;
(v) Liens arising from precautionary Uniform Commercial Code financing statements regarding operating leases or consignments entered into in connection with any transaction otherwise permitted under this Agreement;
(w) Liens on Equity Interests in joint ventures (i) securing obligations of such joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement;
(x) Liens on securities that are the subject of repurchase agreements constituting Permitted Investments under clause (c) of the definition thereof;
(y) Liens on goods or inventory the purchase, shipment or storage price of which is financed by a documentary letter of credit, bank guarantee or bankers’ acceptance issued or created for the account of the Borrower or any Subsidiary in the ordinary course of business; provided that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit, bank guarantee or banker’s acceptance to the extent permitted under Section 6.01;
(z) Liens securing insurance premium financing arrangements; provided that such Liens are limited to the applicable insurance policies;
(aa) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the Borrower or any of its the Subsidiaries in connection with any letter of intent, intent or purchase agreement in respect of any Investment permitted hereunder;
(obb) leases subject the final paragraph below, other Liens with respect to property or assets of the Borrower or any Subsidiary securing obligations in an aggregate principal amount outstanding at any time not to exceed $10.0 million;
(cc) Liens on not more than $7.5 million of deposits securing Hedging Agreements;
(dd) Liens on the Collateral securing the “Obligations” (as defined in the ABL Credit Agreement) (and Liens securing any Permitted Refinancing Indebtedness permitted by Section 6.01(u) in respect of real property on which facilities owned or leased by such “Obligations” (as defined in the documents governing any Credit Party or any of its Subsidiaries such Permitted Refinancing Indebtedness)), so long as such Liens are located, unless such leases are expressly prohibited subject to the ABL Intercreditor Agreement and secured by the terms of this Agreement or ABL Priority Collateral on a pari passu basis with the other Loan Documents
Liens on such ABL Priority Collateral securing the “Obligations” (p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising as defined in the Ordinary Course ABL Credit Agreement) as of Business with respect to obligations which are the Closing Date (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement in the case of any Permitted Refinancing Indebtedness, the ABL Intercreditor Agreement)(for the avoidance of doubt, if there are two or more facilities evidencing or comprising such Lien shall “Obligations” then all such “Obligations” must be in effect; provided, further that adequate reserves with respect thereto are maintained secured on the books of the applicable Persona pari passu basis);
(qee) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof[reserved];
(rff) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)[reserved]; and
(ugg) precautionary Liens on accounts receivable and related assets subject to sales or assignments permitted under Section 6.05(o). For purposes of determining compliance with this Section 6.02, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens described in Sections 6.02(a) through (gg) but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens described in Sections 6.02(a) through (gg), the Borrower shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such Lien or such item of Indebtedness secured by such Lien in one of the above clauses and such Lien securing such item of Indebtedness will be treated as being incurred or existing pursuant to only one of such clauses. Notwithstanding this Section 6.02, and for the avoidance of doubt, in no event shall any Loan Party enter into any leasehold mortgage or other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)comparable security document or grant any Lien on any leasehold estate held by such Loan Party.
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Closing Date and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence of Permitted Purchase Money Debt in connection amount secured or benefited thereby is not increased, and (iii) the direct or any contingent obligor with the funding or financing of such fixed asset(s)respect thereto is not changed;
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety or appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rj) Liens of a collection bank arising under Section 4-210 Subject to the provisions of the UCC on items in Deposit Account Control Agreements, Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the course Borrower, (ii) the Borrower (or applicable Restricted Subsidiary) maintains (subject to such right of collectionset off) dominion and control over such account(s), and (iii) such deposit account is not intended by the Borrower, any Guarantor or any Restricted Subsidiary to provide cash collateral to the depository institution;
(sk) Liens granted on cash and cash equivalents not to secure Debt permitted under Section 10.1(m) exceed at any time $125,000,000 in connection with the financing aggregate, securing obligations of insurance premiumsthe Borrower or its Restricted Subsidiaries pursuant to Swap Contracts for commodity swap transactions provided that such cash and cash equivalents are held in accounts segregated from any cash, cash equivalents and other assets constituting Revolver Priority Collateral;
(tl) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having under the Term Loan and Note Documents or securing Refinancing Indebtedness permitted by Section 7.03(b), covering Collateral that is also subject to Liens in favor of the Administrative Agent, provided that such Liens are subject to the Intercreditor Agreement;
(m) the interests of ▇.▇. ▇▇▇▇▇▇ de Nemours and Company (“DuPont”) under the Ground Lease between DuPont (executed by DuPont on June 29, 2005) and Western Refining Company, L.P. (executed by Western Refining Company, L.P. on June 27, 2005);
(n) Liens on assets (other than assets constituting Revolver Priority Collateral) securing Indebtedness in an aggregate principal amount not exceeding Five Million Dollars to exceed $25,000,000 permitted by Section 7.03(j);
($5,000,000o) Liens on Inventory, accounts receivable and related personal property intangible assets of the Contango Subsidiary and Liens on the Equity Interests in the Contango Subsidiary securing Indebtedness permitted by Section 7.03(m)., provided that (i) such assets are not commingled with any Borrowing Base Assets, and (ii) no proceeds of such assets shall be commingled with proceeds of any Borrowing Base Assets or any Eligible Cash;
Appears in 1 contract
Sources: Revolving Credit Agreement (Western Refining, Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectivelyfollowing, each a “Permitted LiensLien”)::
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 7.01(b) to secure a portion of the purchase price and any modifications, replacements, renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the fixed asset(sproperty covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) which were the subject thereof proceeds and products thereof, and (ii) the incurrence renewal, extension or refinancing of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of benefited by such fixed asset(s)Liens is permitted by Section 7.03;
(c) Liens for Taxestaxes, assessments or other governmental charges which are not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qi) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation other than any Lien imposed by ERISA, (ii) Liens to secure the performance of tenders, statutory obligations, surety, stay, customs, appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (including those to secure health, safety and environmental obligations and exclusive of obligations for Indebtedness) and (iii) Liens in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary;
(f) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(g) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(h) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03(e) and (B) proceeds and products thereof;
(i) Liens securing Indebtedness permitted under Section 7.03(o);
(j) any licenses of patents, copyrights, trademark and other Intellectual Property rights granted to or by the Borrower or any other Loan Party entered into in the ordinary course of business consistent with past practice;
(k) Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02(f) to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, (x) would have been permitted on the date of the creation of such Lien and (y) is entered into in the ordinary course of business consistent with past practice;
(l) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Loan Party, in each case after the Closing Date; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Loan Party, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property), and (iii) the Indebtedness secured thereby is permitted under Section 7.03;
(m) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any other Loan Party in the ordinary course of business consistent with past practice;
(n) Liens that are contractual rights of set-off relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness;
(o) any modification, replacements, renewals of any Liens permitted by clauses (b) and (h); provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof, and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03; and
(p) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC Uniform Commercial Code financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)filings.
Appears in 1 contract
Liens. Create The Borrower will not, and will not permit any of its Subsidiaries, to create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document[Reserved];
(b) Liens securing fixed existing on the Closing Date; provided that any such Liens shall secure only those obligations which it secures on the date hereof and any extensions, renewal and replacements thereof that do not increase the outstanding principal amount thereof, and such Liens do not secure an aggregate principal amount of Indebtedness in excess of $100,000,000 or apply to property or assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price Borrower or financing thereof so long as such Liens are incurred not more than ten (10) days after the later its Subsidiaries in excess of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)$100,000,000;
(c) Liens (other than Liens created or imposed under ERISA) for Taxestaxes, assessments or other governmental charges or levies not yet delinquent due or being Properly Contestedto the extent non-payment thereof is permitted under Section 7.04;
(d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by Law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the property subject to any such Lien is not yet subject to a foreclosure, sale or loss proceeding on account thereof (other than a proceeding where foreclosure, sale or loss has been stayed));
(e) Liens (other than Liens for Taxes created or imposed under ERISA) arising as a matter incurred or deposits made by any member of law and the Consolidated Group in the Ordinary Course ordinary course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislationsecurity, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))bids, performance bondsleases, or arising as a result of progress payments under government contracts, performance and return-of-money bonds and other similar obligations (exclusive of a like nature incurred in obligations for the Ordinary Course payment of Businessborrowed money);
(f) Liens arising as a matter in connection with attachments or judgments (including judgment or appeal bonds) that do not result in an Event of law in the Ordinary Course of Business which are subject to Third Party AgreementsDefault under Section 9.01(h);
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, covenants, restrictions (including zoning restrictions), covenants minor defects or other agreements of record, survey and other non-monetary irregularities in title exceptions and other similar charges or encumbrances on Real Estatenot, which do not interfere with in any material respect, impairing the ordinary course of business use of the Credit Parties encumbered property for its intended purposes;
(h) Liens on property of any Person securing purchase money, capital leases and their respective Subsidiariessale/leaseback Indebtedness of such Person of the type permitted under Section 8.02(a), provided, that, any such Lien attaches only to the property financed or leased and such Lien attaches prior to, at the time of or one hundred eighty (180) days after the later of the date of acquisition of such property or the date such property is placed in service, for the purpose of financing all or any part of the purchase price thereof; provided, however, that for purposes of this clause (h), (A) a satellite will be treated as a newly acquired asset as of the date it is placed in service and (B) any satellite transponder acquired through the exercise of an early buy-out option shall be treated as a newly acquired asset as of the date such option is exercised;
(i) normal and customary rights licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of setoff upon deposits in favor any member of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsConsolidated Group;
(ij) any interest or title of a lessor under, and Liens on arising from UCC financing statements (Aor equivalent filings, registrations or agreements in foreign jurisdictions) acquired Property securing Debt relating to, leases permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the by this Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)Agreement;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure payment of customs duties in connection with the importation of Goodsgoods;
(l) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(sn) Liens granted any Lien existing on any property or asset prior to secure Debt permitted under Section 10.1(mthe acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the financing case may be, (ii) such Lien shall not apply to any other property or assets of insurance premiums;
the Borrower or any Subsidiary and (tiii) Liens existing such Lien shall secure only those obligations which it secures on the Closing Date date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and listed on Schedule 10.2any extensions, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)renewals and replacements thereof that do not increase the outstanding principal amount thereof; and
(uo) other Liens securing not described above, provided that the aggregate outstanding principal amount of the obligations having an aggregate amount secured thereby does not exceeding Five Million Dollars (exceed at any time $5,000,000)2,000,000,000.
Appears in 1 contract
Sources: Credit Agreement (Directv)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Property, whether now owned or hereafter acquired, except the following (collectively, “Permitted Liens”):for:
(a) Liens for taxes not yet due or which are being contested in favor good faith by appropriate proceedings, provided, that adequate reserves with respect thereto are maintained on the books of Administrative Agentthe US Borrower or its Subsidiaries, LC Issueras the case may be, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentto the extent required by GAAP;
(b) landlords', carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens securing fixed assets (including arising in connection with Permitted Purchase Money Debt) to secure the ordinary course of business which are not overdue for a portion period of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) 30 days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt or that are being contested in connection with the funding or financing of such fixed asset(s)good faith by appropriate proceedings;
(c) Liens for Taxespledges, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business statutory trusts in connection with, or to secure payment of, obligations under with workers’ ' compensation, unemployment insurance and other types of social security or similar legislation, or ;
(d) deposits and other Liens to secure the performance of tenders, bids, trade contracts and leases (other than Debtfor borrowed money), leases, subleases, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(he) easements, zoning restrictions, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges or encumbrances on Real Estate, which do not interfere with incurred in the ordinary course of business that, in the aggregate, do not materially detract from the value of the Credit Parties Property subject thereto or materially interfere with the ordinary conduct of the business of the US Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f), securing Indebtedness permitted by Section 7.2(d) and their respective SubsidiariesLiens created after the date hereof in connection with any refinancing, refundings, or renewals or extensions thereof permitted by Section 7.2(d), provided, that no such Lien is spread to cover any additional Property after the Closing Date and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the US Borrower or any Subsidiary incurred pursuant to Section 7.2(c), 7.2(f) or 7.2(t), provided, that, in the case of any such Liens securing Indebtedness incurred pursuant to Section 7.2(c) or 7.2(t) or incurred by any CDN Loan Party pursuant to Section 7.2(f), (i) such Liens shall be created substantially concurrently with the acquisition of the assets financed by such Indebtedness, (ii) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness and the proceeds thereof and (iii) the principal amount of Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens any interest or title of a collecting bank on Payment Items lessor under any lease entered into by the US Borrower or any Subsidiary in the ordinary course of collectionits business and covering only the assets so leased, and other similar Liens granted any financing statement filed in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsconnection with any such lease;
(i) inchoate Liens on (A) acquired Property securing Debt permitted arising from judgments in circumstances not constituting an Event of Default under Section 10.1(f8(h) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted (other than inchoate Liens) arising from judgments in circumstances not constituting an Event of Default under Section 10.1(f)(ii)8(h) for a period not in excess of sixty (60) days after such Lien attaches to specific assets of a Loan Party;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect on property or assets acquired pursuant to the Debt an acquisition permitted under Section 10.1(b)(i)7.8(f) (and the proceeds thereof) or assets of a Subsidiary of the US Borrower in existence at the time such Subsidiary is acquired pursuant to an acquisition permitted under Section 7.8(f) and not created in contemplation thereof;
(l) Liens on Property of Non-Guarantor Subsidiaries securing Indebtedness permitted by this Agreement to be incurred by such Non-Guarantor Subsidiaries;
(m) receipt of progress payments and advances from customers in the ordinary course of business to the extent same creates a Lien on the related inventory and proceeds thereof;
(n) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law law to secure the payment of customs duties in connection with the importation of Goodsgoods;
(mo) other Liens with respect to obligations that do not exceed $5,000,000 at any interest one time outstanding;
(p) Liens on assets of any CDN Loan Party securing Indebtedness permitted by Section 7.2(f); provided that prior to the incurrence of such Liens, the Canadian Administrative Agent shall have entered into an intercreditor agreement and any amendments to the CDN Guarantee and Collateral Agreement providing for the sharing of the Collateral of such CDN Loan Party on an equal and ratable basis, on terms and conditions reasonably satisfactory to the Canadian Administrative Agent;
(q) Liens arising out of consignment or title similar arrangements for the sale by the US Borrower and its Subsidiaries of a lessor goods through third parties in the ordinary course of business;
(r) Liens upon specific items of inventory or sub-lessor under any lease other goods and proceeds of Real Estate made by any Credit Party the US Borrower or any of its Subsidiaries as lessee securing such Person's obligations in respect of bankers' acceptances issued or sub-lessee, to created for the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission account of such lessor Person to facilitate the purchase, shipment or sub-lessor and any Liens storage of such lessor (whether contractually granted in such lease in the ordinary course of business inventory or sublease or similar agreement or statute)other goods;
(ns) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the US Borrower or any of its Subsidiaries in connection with any letter of intent, or purchase agreement an Investment permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly ContestedSection 7.8; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;and
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt deemed to exist in connection with Investments permitted under by Section 10.1(l); and
(u7.8(b) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)that constitute repurchase obligations.
Appears in 1 contract
Liens. Create Create, assume, incur or suffer to exist exist, or allow any Restricted Subsidiary to create, assume, incur or suffer to exist, except by a Restricted Subsidiary in favor of the Company or another wholly-owned Restricted Subsidiary, any Lien upon on any of its Propertyproperty or assets or any shares of capital stock or indebtedness of any Restricted Subsidiary, except the following (collectivelywhether now owned or hereafter acquired, “Permitted Liens”):or assigned, except:
(a) Liens incurred in favor connection with the Cash Collateralization of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan DocumentL/C Exposure;
(b) Liens securing fixed assets (including for taxes not yet due, or Liens for taxes being contested in connection good faith and by appropriate proceedings for which adequate reserves have been established in accordance with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)GAAP;
(c) Liens in respect of property or assets of the Company or any Restricted Subsidiary imposed by Law, which were incurred in the ordinary course of business, such as carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business and (i) which do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operations of the business of the Company or any Restricted Subsidiary or (ii) which are being contested in good faith by appropriate proceedings for Taxes, assessments which adequate reserves have been established in accordance with GAAP and which proceedings have the effect of preventing the forfeiture or other governmental charges not yet delinquent sale of the property or being Properly Contestedassets subject to any such Lien;
(d) Liens existing prior to the time of acquisition (other than Liens for Taxes created, assumed or imposed under ERISAincurred in anticipation of acquisition) arising as a matter of law and in upon any property acquired by the Ordinary Course of BusinessCompany or any Restricted Subsidiary through purchase, but only merger or consolidation or otherwise, if (i) the payment of the obligations indebtedness secured thereby is or interest thereon will not yet due become, by assumption or is being Properly Contested; (ii) such Liens do not materially impair the value or use otherwise, a personal obligation of the Property Company or materially impair operation a Restricted Subsidiary (other than a Person that becomes a Restricted Subsidiary as a result of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtacquisition);
(e) any Lien placed upon property hereafter acquired by the Company or any Restricted Subsidiary or placed upon any equipment, land, buildings, or other properties purchased or constructed which secures Debt incurred for its purchase or construction; provided that (i) such Lien shall cover only hereafter acquired property or property on which construction occurs, and (ii) any such Lien shall be created within six months of the acquisition of, or completion of construction on, such property; and provided, further, that the amount of Debt secured by any such Lien shall not exceed 100% of the lesser of the fair market value at the time of acquisition or the cost of the encumbered property, equipment, land or building, or construction costs, as the case may be;
(f) Liens consisting (other than any Lien imposed pursuant to Sections 303 or 4068 of ERISA or Section 430 of the Code) arising by reason of deposits or pledges made in the Ordinary Course of Business in connection with, or the giving of any form of security to, any Governmental Authority or any body created or approved by Law, which is required by Law as a condition to secure payment ofthe transaction of any business, obligations under workers’ or the exercise of any privilege or license, or to enable the Company or a Restricted Subsidiary to maintain self-insurance or to participate in any arrangements established by Law to cover any insurance risks or in connection with workmen’s compensation, unemployment insurance and other types of insurance, old age pensions, social security or similar legislationmatters;
(g) judgment liens securing judgments, none of which individually exceed the Threshold Amount, so long as the finality of any such judgment is being contested in good faith and execution thereon is stayed and adequate reserves have been established in accordance with GAAP;
(h) easements or similar encumbrances, the existence of which does not materially impair the use or value of the property subject thereto for the purposes for which it is held or was acquired;
(i) lessors’ and landlords’ Liens on fixtures and movable property (other than computer equipment) located on premises leased in the ordinary course of business, so long as the rent secured by said fixtures and movable property is not in default, and any deposits to secure the performance of tenders, bids, trade contracts and leases (other than Debt)contracts, leases, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred nature, in the Ordinary Course of Business;
(f) Liens arising as a matter of law each case in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiariesbusiness;
(ij) normal and customary rights Liens consisting of setoff upon deposits in favor leases (whether “true” leases or capitalized leases) of depository institutions, Liens of a collecting bank on Payment Items computer or other office equipment entered into in the ordinary course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)business;
(k) So long Liens, pledges or deposits made in connection with Government Contracts insofar as such Liens, pledges or deposits relate to property manufactured, installed, constructed, acquired or to be supplied by, or property furnished to, the Intercreditor Agreement is Company or a Restricted Subsidiary pursuant to, or to enable the performance of, such Government Contracts, or property the manufacture, installation, construction or acquisition of which any Governmental Authority thereof finances or guarantees the financing of, pursuant to, or to enable the performance of, such Government Contracts; or deposits or Liens, made pursuant to such Government Contracts, of or upon moneys advanced or paid pursuant to, or in effectaccordance with the provisions of, Liens in favor such Government Contracts, or of or upon any materials or supplies acquired for the purposes of the Term Loan Agent with respect performance of such Government Contracts; or the assignment or pledge to any Person, to the Debt extent permitted by Law, of the right, title and interest of the Company or a Restricted Subsidiary in and to any Government Contract, or in and to any payments due or to become due thereunder, to secure indebtedness incurred and owing to such Person for funds or other property supplied, constructed or installed for or in connection with the performance by the Company or such Restricted Subsidiary of its obligations under Section 10.1(b)(i)such Government Contract;
(l) Liens any mortgage or other Lien in favor of customs and revenue authorities arising as a matter the United States of Applicable Law America or any State thereof, or political subdivision of the United States of America or any State thereof, or any department, agency or instrumentality of the United States of America or any State thereof, or any such political subdivision, to secure payment Debt incurred for the purpose of customs duties in connection with financing the importation acquisition, construction or improvement of Goodsall or any part of the property subject to such mortgage or other Lien; provided, that (i) any such Lien shall cover only such acquired property or property on which construction of improvements occurs, and (ii) any such Lien shall be created within six months of the acquisition of or construction or improvement on such property; and provided, further, that (x) the amount of Debt secured by any such Lien shall not exceed 100% of the lesser of the fair market value at the time of acquisition or construction or the cost of the encumbered property, equipment, land or building, as the case may be and (y) the aggregate amount of all Debt and other indebtedness secured by all such Liens shall not exceed $75,000,000 at any time during the term of this Agreement;
(m) any interest or title Lien securing Debt of a lessor Restricted Subsidiary (i) existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary, (ii) existing on any asset of any Person at the time such Person is merged with or sub-lessor under any lease of Real Estate made by any Credit Party into the Company or any of its Subsidiaries as lessee Restricted Subsidiary or sub-lessee, (iii) existing on any asset prior to the extent permitted hereunderacquisition thereof by the Company or any Restricted Subsidiary; provided, that any such Lien referred to in clauses (i), (ii) and (iii) was not created in the contemplation of any of the foregoing, and any Liens such Lien secures only those obligations which it secures on the date that such lessor’s Person becomes a Restricted Subsidiary or sub-lessor’s estate thereunder or arising from the acts or omission date of such lessor merger or sub-lessor and any Liens the date of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)acquisition;
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries Lien created in connection with the refinancing, renewal or extension of any letter obligations, Debt or claims secured by a Lien of intentthe type described in subsections (d), (e), (f), (g), (l) and (m) above which is limited to the same property; provided that the aggregate amount of the Debt or purchase agreement permitted hereunderclaims secured by such refinancing, renewal or extension Lien does not exceed the aggregate amount thereof secured by the Lien so refinanced, renewed or extended and outstanding at the time of such refinancing, renewal or extension;
(o) leases in respect Liens on accounts receivable, notes, chattel paper and related property subject to a Securitization, provided that the applicable amount of real property on any and all such Securitizations at any time outstanding, shall not at any time exceed the amount of $300,000,000 less any Vendor Finance Investments (other than any Vendor Finance Investments to the extent covered by independent third-party credit insurance as to which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited the insurer does not dispute coverage) then maintained by the terms of this Agreement Company or the other Loan DocumentsRestricted Subsidiaries; and
(p) mechanics’any Liens other than Liens set forth in subsections (a) through (o) or Liens incurred in connection with a Securitization, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in provided that the Ordinary Course sum of Business with respect to obligations which are (i) not due or the aggregate amount of Debt and other indebtedness secured by all such Liens permitted under this subsection (p), (ii) Properly Contested; provided, that no Lien has been filed with the aggregate monetary obligations in respect thereto or, if any such Lien shall have been filed, a stay of enforcement transactions permitted pursuant to the proviso of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on Section 7.03 and (iii) the books applicable amount of all Securitizations of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary Company and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are Restricted Subsidiaries, shall not owned by at any Credit Party or Subsidiary located on the premises time exceed 25% of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)Total Capital.
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, the “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan DocumentDocument securing the Obligations;
(b) Liens securing fixed assets existing on the Restatement Effective Date and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby is not changed, the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b), the direct or any contingent obligor with respect thereto is not changed, and (including in connection with Permitted Purchase Money Debtiv) to secure a portion any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges Taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rj) in connection with any Acquisition, any Lien on personal property of the acquisition target with respect to capital leases or purchase money Indebtedness existing prior to acquisition by the Company or any Subsidiary, provided that (i) such Lien shall be limited to the assets financed by such capital lease or purchase money Indebtedness, (ii) such Lien shall not apply to the inventory, accounts and general intangibles of the acquisition target, (iii) such Lien shall not apply or extend to any other assets or property of any Borrower or any other Subsidiary, (iv) such Lien shall secure only those obligations it secures on the date of such acquisition, including any extensions, renewals and replacements thereof, and no future obligations, and (v) such Lien was not granted in contemplation of or in connection with such Acquisition;
(k) Liens arising out of sale and leaseback transactions permitted by Section 7.17, provided that such Liens do not at any time encumber any property other than the property which is the subject of such sale and leaseback transactions;
(l) Liens of a collection collecting bank arising under Section 4-210 of the UCC on items in the ordinary course of collection;
(s) Liens granted to secure Debt permitted business under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on Uniform Commercial Code covering only the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)items being collected upon; and
(um) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)granted by any Loan Party to any Receivable Purchaser pursuant to any Receivable Financing Documents, provided that such Liens attach only to accounts receivable transferred to the applicable Receivable Purchaser under the applicable Receivable Financing Documents and to proceeds thereof.
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Sixth Amendment Effective Date and listed on Schedule 8.01 and any modifications, replacements, renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition property covered thereby is not increased other than after acquired property that is affixed or incorporated into such property and proceeds and products of the fixed asset(s) which were the subject thereof and such property, (ii) the incurrence of Permitted Purchase Money Debt in connection principal amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with the funding respect thereto is not changed and (iv) any modification, replacement, renewal or financing of such fixed asset(sextension is permitted by Section 8.03(b);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Businessfor taxes, but only if (i) payment of the obligations secured thereby is assessments or governmental charges or levies not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ▇▇▇▇▇;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qh) Liens arising from securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 9.01(h);
(i) operating leases with respect Liens securing Indebtedness permitted under Section 8.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness (except for additions and accessions to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such property) and (ii) equipment such Liens attach to such property concurrently with or other materials which are not owned by any Credit Party or Subsidiary located on within ninety days after the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect acquisition thereof;
(rj) leases, licenses, subleases or sublicenses granted to others not interfering in any material respect with the business of any Loan Party or any Subsidiary;
(k) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(l) Liens deemed to exist in connection with Investments in Permitted Repos;
(m) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(n) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(o) Liens incurred or assumed in the ordinary course on cash, marketable securities, commodities or other financial products to secure securities lending transactions at Regulated Subsidiaries and other stock lending transactions, repurchase agreements, and other collateralized financing transactions at Regulated Subsidiaries;
(p) pledges of securities or commodity positions and exchange memberships in the ordinary course of business;
(q) deposits or securities with commodity or securities exchanges or clearing organizations, or with other exchanges or markets, in each case in the ordinary course of business;
(r) Liens in favor of customers of Regulated Subsidiaries arising in the ordinary course of business and Liens securing indebtedness of Regulated Subsidiaries in respect of customer funds in the ordinary course of business;
(s) Liens granted to secure Debt permitted under Section 10.1(m) incurred in connection the ordinary course of the business of the Loan Parties and their Subsidiaries, including, without limitation, its trading and market making businesses and other lines of business entered into in accordance with the financing terms of insurance premiumsthis Agreement;
(t) Liens existing on securing Indebtedness of any Person that becomes a Subsidiary after the Closing Date as a result of a Permitted Acquisition or otherwise assumed in connection with a Permitted Acquisition, provided that such Indebtedness (and listed on Schedule 10.2any Guarantees thereof) exists at the time of such Permitted Acquisition, including and is not created in contemplation of or in connection with such Permitted Acquisition and refinancings in respect thereof;
(u) Liens in favor of the Borrower and the Guarantors;
(v) Liens securing Permitted Refinancing Indebtedness permitted by Section 8.03(f); provided that such Liens do not at any time encumber any property other than the underlying trading assets (including assets ancillary to such trading assets and proceeds thereof) being purchased with the proceeds of such Indebtedness, except for (i) Liens securing Indebtedness under the StoneX Financial Margin Facility, which Liens may encumber all of the assets of StoneX Financial, and (ii) Liens securing Indebtedness under the StoneX Commodity Facility, which Liens may encumber all of the StoneX Commodity Facility Collateral;
(w) (i) Liens securing the Second Lien Debt permitted under pursuant to Section 10.1(l8.03(p), so long as such Liens are subject to the Intercreditor Agreement; and (ii) if the Borrower has agreed that the proceeds of the Second Lien Debt are to be funded into escrow prior to the date on which the GCAP Acquisition is consummated, Liens in favor of the GCAP Acquisition Escrow Agent on the GCAP Acquisition Escrowed Property;
(x) other Liens securing obligations the aggregate amount of which does not exceed $15,000,000;
(y) Liens on assets of a Subsidiary that is not a Loan Party in favor of a Subsidiary that is not a Loan Party securing Indebtedness permitted by Section 8.03(c); and
(uz) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000Indebtedness permitted by Section 8.03(q).
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or (i) created pursuant to any Loan Document and (ii) on the Collateral securing Cash Management Obligations incurred pursuant to Section 7.03(l) and other Secured Party arising pursuant hereto or under any other Loan DocumentObligations;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof Closing Date and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(slisted on Schedule 7.01(b);
(c) Liens for Taxes, assessments or other governmental charges that are not yet delinquent overdue or that are being Properly Contestedcontested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) statutory or common law Liens (of landlords, sub-landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens, so long as, in each case, such Liens secure amounts not overdue for a period of more than 30 days or, if more than 30 days overdue, are unfiled and no other action has been taken to enforce such Liens for Taxes or imposed under ERISA) arising as a matter of law that are being contested in good faith and in by appropriate actions, if adequate reserves with respect thereto are maintained on the Ordinary Course of Business, but only if (i) payment books of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting of (i) pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or similar legislationindemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Consolidated Party;
(f) pledges or deposits to secure the performance of tenders, bids, trade contracts, utilities, governmental contracts and leases (other than DebtIndebtedness for borrowed money), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g))surety, stay, customs and appeal bonds, performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, building codes, restrictions (including zoning restrictions), covenants or other agreements of recordencroachments, survey and other non-monetary title exceptions licenses, protrusions and other similar charges or encumbrances on and minor title defects, in each case affecting Real Estate, which Property and that do not in the aggregate materially interfere with the ordinary conduct of the business of the Consolidated Parties, taken as a whole, and any exceptions on the Mortgage Policies issued in connection with the Mortgaged Properties;
(h) Liens (i) securing judgments for the payment of money not constituting an Event of Default under Section 8.01(g), (ii) arising out of judgments or awards against any Consolidated Party with respect to which an appeal or other proceeding for review is then being pursued and for which adequate reserves have been made with respect thereto on the books of the applicable Person in accordance with GAAP and (iii) notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings for which adequate reserves have been made with respect thereto on the books of the applicable Person in accordance with GAAP;
(i) leases, licenses, subleases or sublicenses (including the provision of software or the licensing of other intellectual property rights) and terminations thereof, in each case granted to others in the ordinary course of business of the Credit Parties and their respective Subsidiaries;
which (i) normal and customary rights of setoff upon deposits do not interfere in favor of depository institutions, Liens of a collecting bank on Payment Items in any material respect with the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition business of the Property subject to such Lien; Consolidated Parties, taken as a whole, (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (zii) do not attach to secure any other Property of the Credit Parties or any of their Subsidiaries Indebtedness and (iiiii) Liens securing Debt are permitted under by Section 10.1(f)(ii7.05(g);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(lj) Liens (i) in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goodsgoods in the ordinary course of business or (ii) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;
(k) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) encumbering initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, (iii) in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institutions general terms and conditions, and (iv) that are contractual rights of setoff or rights of pledge relating to (A) purchase orders and other agreements entered into with customers of Borrower or any of its Restricted Subsidiaries in the ordinary course of business or (B) pooled deposit or sweep accounts of Borrower or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any of its Restricted Subsidiaries;
(l) Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02, to be applied against the purchase price for such Investment, or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(m) Liens in favor of the Borrower or any Subsidiary Guarantor;
(n) any interest or title of a lessor lessor, sub-lessor, licensor or sub-lessor licensor under any lease of Real Estate made leases, subleases, licenses or sublicenses entered into by any Credit Party the Borrower or any Restricted Subsidiary in the ordinary course of its Subsidiaries as lessee business;
(o) Liens arising out of conditional sale, title retention, consignment or sub-lessee, to similar arrangements for sale of goods entered into by the extent permitted hereunder, and Borrower or any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease Restricted Subsidiary in the ordinary course of business or sublease or similar agreement or statutepermitted by this Agreement;
(p) Liens deemed to exist in connection with Investments in repurchase agreements under Section 7.02(a);
(nq) [reserved];
(r) Liens that are contractual rights of set-off or rights of pledge relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(s) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent, intent or purchase agreement permitted hereunder;
(ot) ground leases in respect of real property Real Property on which facilities owned or leased by any Credit Party the Borrower or any of its Restricted Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents;
(pu) mechanics’Liens to secure Indebtedness permitted under Section 7.03(e); provided that (i) such Liens are incurred within 270 days of the acquisition, workers’construction, materialmen’srepair, carriers’lease or improvement of the property subject to such Liens, warehousemen’s(ii) such Liens do not at any time encumber property (except for replacements, landlords or additions and accessions to such property) other like Liens arising in than the Ordinary Course of Business property financed by such Indebtedness and the proceeds and products thereof and customary security deposits and (iii) with respect to obligations which Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for replacements, additions and accessions to such assets) other than the assets subject to such Capitalized Leases and the proceeds and products thereof and customary security deposits; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(v) Liens on property of any Restricted Subsidiary that is not a Loan Party securing Indebtedness permitted under Section 7.03 of Restricted Subsidiaries that are not Loan Parties;
(w) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), in each case after the Closing Date (other than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary to the extent such Equity Interests are owned by the Borrower or any Subsidiary Guarantor); provided that (i) such Lien was not due created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been fileddoes not extend to or cover any other assets or property (other than the proceeds, products and accessions thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a stay pledge of enforcement of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such Lien shall be in effect; providedrequirement would not have applied but for such acquisition), further that adequate reserves with respect thereto are maintained on and (iii) the books of the applicable PersonIndebtedness secured thereby is permitted under Section 7.03(g)(i);
(qx) (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(y) Liens arising from precautionary Uniform Commercial Code financing statement or similar filings securing obligations permitted to be incurred on a secured basis under Section 7.03 and elsewhere under this Section 7.01;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) the modification, replacement, renewal or extension of any Lien permitted by Section 7.01(b), (u) or (w); provided that (i) operating leases with respect the Lien does not extend to assets which are not owned any additional property, other than (A) after-acquired property that is affixed or incorporated into the property covered by any Credit Party or any Subsidiary such Lien and the precautionary UCC financing statement filings in respect thereof (B) proceeds and products thereof, and (ii) equipment the renewal, extension, restructuring or other materials which are not owned refinancing of the obligations secured or benefited by any Credit Party or Subsidiary located on such Liens is permitted by Section 7.03 (to the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofextent constituting Indebtedness);
(rbb) Liens of a collection bank arising under Section 4-210 with respect to property or assets of the UCC on items Borrower or any of its Restricted Subsidiaries securing obligations in an aggregate principal amount outstanding at any time not to exceed the course greater of collection$10,000,000 and 10.0% of LTM EBITDA, in each case determined as of the date of incurrence;
(scc) Liens granted on the Collateral securing obligations in respect of Permitted Equal Priority Refinancing Debt or Permitted Junior Priority Refinancing Debt and Indebtedness permitted pursuant to secure Debt permitted under Section 10.1(m) 7.03(r), or securing any Permitted Refinancing in connection with respect of any of the financing of insurance premiumsforegoing;
(tdd) Liens existing on deposits of cash with the Closing Date owner or lessor of premises leased and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted operated by the Borrower or any of its Restricted Subsidiaries to secure the performance of the Borrower’s or such Restricted Subsidiary’s obligations under Section 10.1(l)the terms of the lease for such premises; and
(uee) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)arising by operation of law in the United States under Article 2 of the UCC in favor of a reclaiming seller of goods or buyer of goods.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender created or any other Secured Party arising pursuant hereto or under to any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 7.01 ------------- and any renewals or extensions thereof, provided that the property covered -------- thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred benefited thereby does not more than ten (10) days after increase the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing maximum outstanding principal amount of such fixed asset(s)obligations;
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law being contested in good faith and by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orappropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(qh) Liens arising from securing judgments for the payment of money in an aggregate amount not in excess of the Threshold Amount (except to the extent covered by independent third-party insurance as to which the insurer has acknowledged in writing its obligation to cover), unless any such judgment remains undischarged for a period of more than 10 consecutive days during which execution is not effectively stayed;
(i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings Liens securing Indebtedness in respect thereof of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets; provided that (i) such Liens do not at any time encumber any -------- property other than the property financed by such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rj) Liens on fixed assets acquired in connection with a Permitted Acquisition so long as such Liens were existing at the time of such Acquisition by the Borrower or a collection bank arising under Section 4-210 Subsidiary and were not incurred, extended or renewed in contemplation of such Acquisition; provided that (i) the Lien -------- shall attach solely to the property acquired, and (ii) at the time of acquisition of such fixed assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such fixed assets whether or not assumed by the Borrower or a Subsidiary shall not exceed an amount equal to the lesser of the UCC on items in total purchase price or fair market value at the course time of collectionacquisition of such fixed assets;
(sk) Liens on notes or accounts receivable or any rights and claims associated therewith that are granted pursuant to secure Debt permitted under Section 10.1(m) in connection with Permitted Securitization Transactions or the financing of insurance premiumsFactoring Program;
(tl) Liens existing on margin stock (as defined in Regulation U), but only to the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)extent that the value of such margin stock would exceed 25% of the consolidated assets of the Borrower; and
(um) other Liens securing obligations having Indebtedness in an aggregate amount not exceeding Five Million Dollars (of up to $5,000,000)1,000,000 at any time.
Appears in 1 contract
Sources: Credit Agreement (Kellwood Co)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (each a “Permitted Lien” and collectively, the “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(i) operating Liens securing capital leases with respect to assets which are permitted under Section 7.03(e); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)acquisition; and
(uj) other If the Company and/or any Subsidiary has delivered Mortgages to Administrative Agent pursuant to Section 6.14, Liens securing obligations having an aggregate amount not exceeding Five Million Dollars in favor of Prudential Insurance Company of America.
($5,000,000)k) Liens on margin accounts established in connection with Swap Contracts permitted under Section 7.11.
Appears in 1 contract
Liens. Create Neither the Mortgagor, any charterer, the master of the Vessel nor any other person has or suffer shall have any right, power or authority to exist create, incur or permit to be placed or imposed or continued upon the Vessel, any Lien upon any of its Property, except the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (whatsoever other than the Lien of this Mortgage, Permitted Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;following:
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition for wages of the Property subject to such Lien; crew (y) are applicable only including wages of a master to the Property extent provided by 46 U.S.C. App. (S)(S) 10301-10321, inclusive ("Master's Wages")), general average and salvage (including contract salvage) which shall not have been due and payable for forty-five (45) days after termination of such Subsidiary a voyage or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of which shall then be contested by the Credit Parties or any of their Subsidiaries and Mortgagor in good faith;
(ii) Liens securing Debt permitted under Section 10.1(f)(ii)for wages of the crew (including Master's Wages) and salvage (including contract salvage) which are either unclaimed or covered by insurance;
(kiii) So long as the Intercreditor Agreement is in effect, Liens in favor incident to current operations (except for wages of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i)crew including Master's Wages and salvage) or liens covered by insurance and any deductible applicable thereto;
(liv) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)for repairs; and
(uv) other Liens securing obligations having an aggregate amount disclosed on Schedule 2.2 hereto; provided that the Liens stated to be permitted by the foregoing subparagraphs (i) through (iv) shall, unless they constitute a Lien for damage arising out of tort, for wages of a stevedore when employed directly by the Mortgagor, master, ship's husband, or agent, for wages of the crew (including Master's Wages) for general average, or for salvage (including contract salvage), be permitted only to the extent such Liens are either accrued (but not exceeding Five Million Dollars ($5,000,000)yet due) or are subordinate to the Lien of this Mortgage. Nothing contained in this Section 2.6 constitutes a waiver by the Mortgagee of the Mortgagee's preferred status pursuant to the provisions of Chapters 301 and 313 of Title 46 of the United States Code. If any such Lien is placed on the Vessel which is not subordinate to the Lien of this Mortgage, Mortgagor will promptly after becoming aware of such Lien notify the Mortgagee.
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Note Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof date hereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)listed on Schedule 8.01;
(c) Liens for Taxes, assessments or other governmental charges not yet delinquent or being Properly Contested;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party (other than ▇▇▇▇▇ imposed under ERISA) for taxes, assessments or any of its Subsidiaries in connection with any letter of intent, governmental charges or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned levies not yet due or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orbeing contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable PersonPerson in accordance with GAAP;
(qd) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided, that, such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, the payment or provision of compensation or benefits and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, indemnity and performance bonds and other obligations of a like nature incurred in the ordinary course of business; \\4165-2766-4210 v2v5
(g) easements, encroachments, rights-of-way, covenants and restrictions and other similar encumbrances affecting real property which are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person conducted thereon;
(h) Liens arising from securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 9.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 8.03(e); provided, that: (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and such Indebtedness, (ii) equipment or other materials which are the Indebtedness secured thereby does not owned by any Credit Party or Subsidiary located exceed the cost (negotiated on an arm’s length basis) of the property being acquired on the premises date of acquisition and (iii) such Credit Party Liens attach to such property concurrently with or Subsidiary within ninety (but not in connection with, or as part of, 90) days after the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect acquisition thereof;
(ri) [reserved];
(j) licenses, sublicenses, leases or subleases (other than any exclusive license or sublicense relating to intellectual property) granted to others in the ordinary course of business not interfering in any material respect with the business of any Note Party or any of its Subsidiaries;
(k) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(l) normal and customary bankers’ liens and rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(m) Liens of a collection bank arising under Section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(sn) Liens granted of sellers of goods to secure Debt permitted the Issuer and any of its Subsidiaries arising under Section 10.1(m) Article 2 of the Uniform Commercial Code or similar provisions of applicable law in connection with the financing ordinary course of insurance premiumsbusiness, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;
(to) non-exclusive licenses of over-the-counter software that is commercially available to the public and other non-exclusive licenses granted in the ordinary course of business by a Note Party or Subsidiary;
(p) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business;
(q) Subject to Section 12.24 and so long as an Enhanced Protection Event has not occurred, Liens existing solely on accounts receivable, inventory, cash and any deposit account established and maintained with the lender under a Working Capital Facility to hold such cash and all proceeds of the foregoing (other than proceeds of (i) the Notes, (ii) Intellectual Property, and (iii) Collateral that does not secure such Working Capital Facility) (the “Working Capital Priority Collateral”) securing the Indebtedness under any Working Capital Facility permitted by Section 8.03(g), which Liens may rank higher in lien priority to the Liens of the Collateral Agent on the Closing Date Working Capital Priority Collateral securing the Obligations of the Secured Parties; provided, that such Indebtedness is subject to a customary intercreditor and listed lien \\4165-2766-4210 v2v5 subordination agreement (a “WC Intercreditor Agreement”) in form and substance reasonably satisfactory to the Authorized Representative and the Collateral Agent with the applicable financial institution providing such Working Capital Facility (“Working Capital Facility Lender”) pursuant to which (A) the security interest in the Working Capital Priority Collateral securing the Working Capital Facilities are senior and prior to the security interest of the Collateral Agent in the Working Capital Priority Collateral securing the Obligations, (B) the Collateral Agent, on Schedule 10.2behalf of the Secured Parties, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)shall retain a second priority security interest in such Working Capital Priority Collateral, and (C) the Collateral Agent, on behalf of the Secured Parties, shall maintain its first priority security interest in all other Collateral of the Note Parties; and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 1 contract
Liens. Create The Company and the HSCC Subsidiaries shall not, nor shall they permit any of their subsidiaries to directly or suffer indirectly, create, incur, assume or permit to exist any Lien upon lien, security interest, option or other charge or encumbrance (each, a “Lien”) on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Company, the HSCC Subsidiaries, or any of its Propertytheir subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC of any State or under any similar recording or notice statute, except the following (collectively, for Permitted Liens. “Permitted Liens”):
” means: (a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i1) the acquisition of security interests created by the fixed asset(sSecurity Documents, (2) any prior security interest granted to the Buyer, (3) existing Liens which were have been disclosed by the subject thereof and Company on Schedule 5(f) attached hereto; (ii4) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s);
(c) inchoate Liens for Taxestaxes, assessments or other governmental charges or levies not yet delinquent due, as to which the grace period, if any, related thereto has not yet expired, or being Properly Contested;
contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; (d5) Liens (of carriers, materialmen, warehousemen, mechanics and landlords and other than similar Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is which secure amounts which are not yet due overdue or is which are being Properly Contestedcontested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; (ii6) such Liens do licenses, sublicenses, leases or subleases granted to other person or entity not materially impair interfering with the value or use of the Property or materially impair operation conduct of the business of any Borrower the Company or Subsidiaryits subsidiaries; and (iii) such Liens do not secure Debt;
(e7) Liens consisting securing capitalized lease obligations and purchase money indebtedness incurred solely for the purpose of deposits financing an acquisition or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contestedlease; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) 8) easements, rights-of-way, restrictions, covenants or other agreements of recordencroachments, survey and other non-monetary title exceptions municipal zoning ordinances and other similar charges or encumbrances on Real Estateencumbrances, which do and minor title deficiencies, in each case not interfere securing debt and not materially interfering with the ordinary course conduct of the business of the Credit Parties Company or its subsidiaries and their respective Subsidiaries;
not materially detracting from the value of the property subject thereto; (i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i9) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition arising out of the Property subject to such Lienexistence of judgments or awards which judgments or awards do not constitute an Event of Default; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii10) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease incurred in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter workers compensation claims, unemployment insurance, pension liabilities and social security benefits and Liens securing the performance of intentbids, or purchase agreement permitted hereunder;
tenders, leases and contracts in the ordinary course of business, statutory obligations, surety bonds, performance bonds and other obligations of a like nature (oother than appeal bonds) leases incurred in the ordinary course of business (exclusive of obligations in respect of real property on the payment for borrowed money); (11) Liens in favor of a banking institution arising by operation of law encumbering deposits (including the right of set-off) and contractual set-off rights held by such banking institution and which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by within the terms of this Agreement or general parameters customary in the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords banking industry and only burdening deposit accounts or other like Liens arising funds maintained with a creditor depository institution; (12) usual and customary set-off rights in the Ordinary Course of Business leases and other contracts; (13) escrows in connection with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary acquisitions and the precautionary UCC financing statement filings in respect thereof dispositions and (ii14) equipment or other materials which are not owned a Lien granted by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) Safety & Ecology in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)Safety & Ecology Debt.
Appears in 1 contract
Sources: Securities Purchase Agreement (Homeland Security Capital CORP)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price date hereof and listed on Schedule 7.01 hereto and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) and any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if (i) adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, and (ii) in the case of a Lien against any of the Collateral, such contest proceedings operate to stay the sale of any portion of the Collateral to satisfy such taxes;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, but only if (i) payment adequate reserves with respect thereto are maintained on the books of the obligations secured thereby is not yet due or is being Properly Contested; applicable Person in accordance with GAAP and (ii) such Liens do not materially impair in the value or use case of a Lien against any of the Property or materially impair operation Collateral, such contest proceedings operate to stay the sale of any portion of the business of any Borrower or Subsidiary; and (iii) Collateral to satisfy such Liens do not secure DebtLiens;
(e) Liens consisting of pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business (I) in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security or similar legislation, other than any Lien imposed by ERISA and (II) securing liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty or liability insurance to any Loan Party;
(f) deposits to secure the performance of tenders, bids, trade contracts, government contracts and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions restrictions and other similar charges or encumbrances on Real Estateaffecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) leases or subleases and non-exclusive licenses or non-exclusive sublicenses granted to others in the ordinary course of business which do not (i) interfere in any material respect with the business of the Credit Parties Borrower or any of its Subsidiaries and their respective Subsidiaries(ii) secure any Indebtedness;
(i) any interest or title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(j) Liens arising as a matter of law or created in the ordinary course of business in the nature of (i) normal and customary rights of setoff and banker’s liens upon deposits of cash in favor of banks or other depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries institutions and (ii) Liens securing Debt permitted under Section 10.1(f)(ii)reasonable and customary fees for services in favor of banks, securities intermediaries or other depository institutions;
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section section 4-210 of the UCC Uniform Commercial Code on items in the course of collection;
(sl) Liens granted to secure Debt permitted securing judgments for the payment of money not constituting an Event of Default under Section 10.1(m8.01(i) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens or securing Permitted Refinancing Debt permitted under Section 10.1(l)appeal or other surety bonds relating to such judgments; and
(um) other Liens securing obligations having an aggregate amount Indebtedness permitted under Section 7.03(f); provided that (i) such Liens do not exceeding Five Million Dollars at any time encumber any property other than the property financed by such Indebtedness and ($5,000,000)ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition.
Appears in 1 contract
Liens. Create Borrower shall not create, incur, assume or suffer to exist any Lien upon upon, in or against, or pledge of, any of the Collateral or any of its Propertyproperties or assets or any of its shares, securities or other equity or ownership or partnership interests, whether now owned or hereafter acquired, except the following (collectively, “Permitted Liens”):
"PERMITTED LIENS"): (a) Liens under the Loan Documents or otherwise arising in favor of Administrative Agent, LC Issuerfor the benefit of itself and Lenders, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets imposed by law for taxes, assessments or charges of any Governmental Authority for claims not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained by Borrower in accordance with GAAP to the satisfaction of Agent in its sole discretion, (including in connection with Permitted Purchase Money Debtc) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition statutory Liens of the fixed asset(slandlords (provided that any such landlord has executed a Landlord Waiver and Consent in form and substance satisfactory to Agent) which were the subject thereof and of carriers, warehousemen, mechanics and materialmen, and (ii) other Liens imposed by law or that arise by operation of law in the incurrence ordinary course of Permitted Purchase Money Debt business from the date of creation thereof, in connection each case only for amounts not yet due or which are being contested in good faith by appropriate proceedings and with the funding or financing of such fixed asset(s);
(c) Liens for Taxes, assessments respect to which adequate reserves or other governmental charges not yet delinquent or appropriate provisions are being Properly Contested;
maintained by Borrower in accordance with GAAP to the satisfaction of Agent in its sole discretion, (d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due incurred or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course ordinary course of Business business (including, without limitation, surety bonds and appeal bonds) in connection with, or to secure payment of, obligations under with workers’ ' compensation, unemployment insurance and other types of social security or similar legislation, benefits or to secure the performance of tenders, bids, trade leases, contracts and leases (other than Debtfor the repayment of Indebtedness), statutory obligations and other similar obligations, surety bonds or (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or ii) arising as a result of progress payments under government contracts, and other obligations (e) purchase money Liens (i) securing Indebtedness permitted under Section 7.2(c), or (ii) in connection with the purchase by Borrower of a like nature incurred equipment in the Ordinary Course normal course of Business;
business; provided, that such payables shall not exceed any limits on Indebtedness provided for herein and shall otherwise be Permitted Indebtedness hereunder, (f) Liens arising as a matter necessary and desirable for the operation of law Borrower's business; provided, that Agent has consented to such Liens in writing before their creation and existence and the Ordinary Course priority of Business which such Liens and the debt secured thereby are both subject and subordinate in all respects to Third Party Agreements;
the Liens securing the Collateral and to the Obligations and all of the rights and remedies of Agent and each Lender, all in form and substance satisfactory to Agent in its sole discretion, (g) Liens arising as a matter of law shown on the title policy or survey covering the Real Property and approved by virtue of a judgment or judicial order against any Credit Party or SubsidiaryAgent prior to the date hereof, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with promptly after the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutionsrendition thereof, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made imposed by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party judgment rendered against Borrower or any of its Subsidiaries in connection with any letter excess of intent(A) $250,000, if such amount is covered by insurance or purchase agreement permitted hereunder;
(oB) leases in respect of real property on which facilities owned or leased $100,000, if such amount is not covered by any Credit Party or any of its Subsidiaries are locatedinsurance, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are and (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed disclosed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000)7.3.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Texas San Macros Treatment Center Lp)
Liens. Create Neither of the Obligors nor any of their respective Subsidiaries will create, incur, assume or suffer to exist exist, directly or indirectly, any Lien upon on any of its Propertyproperty now owned or hereinafter acquired, except other than the following (collectively, “Permitted Liens”):following:
(a) Liens existing on the date hereof securing Indebtedness outstanding on the date hereof, and which are not otherwise permitted under paragraphs (b) through (k) below, in favor of Administrative Agent, LC Issuer, Swing Line Lender an aggregate principal amount not exceeding U.S. $10,000,000 or any other Secured Party arising pursuant hereto or under any other Loan Documentthe Exchange Equivalent thereof in $ Cdn. Dollars;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) for Taxes not yet due or which are subject to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Contest;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, and other similar Liens and any other Liens imposed by Law (other than any Lien imposed by ERISA or pursuant to any Environmental Law) created in the ordinary course of business for Taxes, assessments or other governmental charges amounts not yet delinquent due or being Properly Contestedwhich are subject to a Contest;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislationsecurity, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance and appeal bonds, or arising as a result of progress payments under bids, leases, government contracts, performance and return-of-money bonds, and other similar obligations (exclusive of a like nature incurred in obligations for the Ordinary Course payment of Businessborrowed money);
(fe) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easementsEasements, rights-of-way, restrictionszoning, covenants or other agreements of record, survey and other non-monetary title exceptions similar restrictions and other similar charges or encumbrances on Real Estatethat do not materially interfere with the conduct of the business of the Borrower, UDSC or any of their respective Subsidiaries and which do not interfere with detract materially from the ordinary course of business value of the Credit Parties and property to which they attach or impair materially the use thereof by the Borrower, UDSC or any of their respective Subsidiaries or have a Material Adverse Effect;
(f) purchase money Liens not to exceed 100% of the applicable purchase price; provided that such Lien shall attach within 180 days of the acquisition of the related asset and in no event shall such Lien attach to current assets of the Borrower, UDSC or any of their respective Significant Subsidiaries;
(ig) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank any Lien existing on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant any asset prior to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of thereof by the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties Borrower, UDSC or any of their respective Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is not created in effect, Liens contemplation of such acquisition; provided that in favor no event shall such Lien attach to current assets of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party Borrower, UDSC or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)their respective Significant Subsidiaries;
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or revenues, whether now owned or hereafter acquired, except for the following (collectively, the “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender pursuant to any Loan Document or otherwise securing any other Secured Party arising pursuant hereto or under any other Loan DocumentObligations;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of existing on the purchase price Closing Date and listed on Schedule 7.01 and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(b);
(c) Liens for Taxes, assessments or other governmental charges Taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising such as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are not overdue for a period of more than thirty (i30) not due days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person; provided that a reserve or other appropriate provision shall have been made therefor and the aggregate amount of such Liens is less than $500,000;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA or any Foreign Government Scheme or Arrangement;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h);
(i) operating leases Liens securing Indebtedness permitted under Section 7.02(c); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to assets cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or any of its Subsidiaries with any Lender, in each case in the ordinary course of business in favor of the bank or banks with which such accounts are not owned maintained, securing solely the customary amounts owing to such bank with respect to cash management and operating account arrangements; provided, that in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(k) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by any Credit Loan Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course ordinary course of Business business and covering only the precautionary UCC financing statement filings in respect thereofassets so leased, licensed or subleased;
(rl) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(sm) Liens granted on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Foreign Subsidiary of the Borrower; provided that such Liens were not created in contemplation of such merger, consolidation or Investment and do not extend to secure Debt any assets other than those of the Person merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary, and the applicable Indebtedness secured by such Lien is permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l7.02(j); and
(un) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000Indebtedness permitted under Section 7.02(k).
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the Domestic Borrower or any of its Subsidiaries as debtor, or assign any accounts or other right to receive income, other than the following (collectively, the “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Additional Secured Obligations;
(c) Liens for Taxesexisting on the date hereof (or, assessments as to Pericom and its Subsidiaries, on the 2015 Incremental Term Draw Date) and listed on Schedule 5.08(b) and any renewals or other governmental charges extensions thereof, provided that (i) the property covered thereby is not yet delinquent changed, (ii) the amount secured or being Properly Contestedbenefited thereby is not increased except as contemplated by Section 7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(d);
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is taxes not yet due or is which are being Properly Contested; (ii) such Liens do not materially impair contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the value or use books of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtapplicable Person in accordance with GAAP;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qf) Liens arising pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(g) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(i) operating leases with respect to assets which are Liens securing judgments for the payment of money not owned constituting an Event of Default under Section 8.01(h);
(j) Liens securing Indebtedness permitted under Section 7.02(f); provided that (i) such Liens do not at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(rk) Liens of a collection bank arising under Section 4-210 Article 24 or 26 of the UCC on items general terms and conditions (Algemene Bank Voorwaarden) of any member of the Dutch Banker’s Association (Nederlandse Vereniging ▇▇▇ ▇▇▇▇▇▇) or any similar term applied by a financial institution in the course of collectionNetherlands pursuant to its general terms and conditions;
(sl) Liens granted to secure Debt arising under the Diodes Zetex Pension Scheme Legal Charge;
(m) Liens arising in connection with Indebtedness permitted under Section 10.1(m) in connection with 7.02(h); provided that such Liens do not at any time encumber any property other than the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)property financed by such Indebtedness; and
(un) other Liens not otherwise permitted under this Section 7.01 securing obligations having Indebtedness outstanding in an aggregate principal amount not exceeding Five Million Dollars (to exceed $5,000,000)2,000,000, provided that no Lien shall extend to or cover any Collateral.
Appears in 1 contract
Sources: Credit Agreement (Diodes Inc /Del/)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby is not increased and any renewal or extension of the purchase price obligations secured or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(sbenefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Businessby laws, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection withincluding carriers’, or to secure payment ofwarehousemen’s, obligations under workers’ compensationmechanics’, unemployment insurance and other types of social security or similar legislationmaterialmen’s, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agentrepairmen’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of recordlike Liens, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Sections 7.03(e) and 7.03(i); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party acquisition;
(j) leases or Subsidiary subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(but not in connection with, or as part of, the financing thereofk) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereofregarding operating leases;
(rl) Liens statutory and common law landlords’ liens under leases to which the Borrower or any of its Subsidiaries is a collection bank arising under Section 4-210 of the UCC on items in the course of collectionparty;
(sm) licenses (with respect to IP Rights) granted to other Persons that do not interfere in any material respect with the conduct of the business of the Borrower or any of its Subsidiaries;
(n) Liens granted in favor of customs and revenue authorities arising as a matter of law and in the ordinary course of business to secure Debt permitted under Section 10.1(m) payment of customs duties in connection with the financing importation of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)goods; and
(uo) other Liens securing obligations having an aggregate amount Indebtedness not at any time exceeding Five Million Dollars ($5,000,000)5,000,000 in the aggregate.
Appears in 1 contract
Sources: Credit Agreement (Microsemi Corp)
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the Borrower or any of its Subsidiaries as debtor (other than precautionary lease filings covering only the property subject to any such lease), or assign any accounts or other right to receive income, other than the following (collectively, “Permitted Liens”):
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 5.08(b) to secure a portion of the purchase price and any renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof, provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(e), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(e);
(c) Liens for Taxes, assessments or other governmental charges taxes not yet delinquent due or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, repairmen’s, lessor’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 30 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens arising from securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) operating leases with respect to assets which are Liens securing Indebtedness permitted under Section 7.02(g); provided that (i) such Liens do not owned at any time encumber any property other than the property financed by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof such Indebtedness and (ii) equipment the Indebtedness secured thereby does not exceed the cost or other materials which are not owned by any Credit Party or Subsidiary located fair market value, whichever is lower, of the property being acquired on the premises date of such Credit Party 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 the precautionary UCC financing statement filings in respect thereofacquisition;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(sj) Liens granted in favor of Bank of America or any of its Affiliates; and [*] = Portions of this exhibit have been omitted pursuant to secure Debt permitted under Section 10.1(m) in connection a confidential treatment request. An unredacted version of this exhibit has been filed separately with the financing of insurance premiums;Commission.
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(uk) other Liens securing obligations having Indebtedness outstanding in an aggregate principal amount not exceeding Five Million Dollars (to exceed $5,000,000)250,000.
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the following (collectivelyUniform Commercial Code of any jurisdiction a financing statement that names the Borrower or any of its Subsidiaries as debtor, “Permitted Liens”):or assign any accounts or other right to receive income, other than the following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or pursuant to any other Secured Party arising pursuant hereto or under any other Loan Document;
(b) Liens securing fixed assets (including in connection with Permitted Purchase Money Debtexisting on the date hereof and listed on Schedule 5.08(b) to secure a portion of the purchase price and any replacements, modifications, renewals or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of extensions thereof; provided that (i) the acquisition of the fixed asset(s) which were the subject thereof and property covered thereby is not changed, (ii) the incurrence amount secured or benefited thereby is not increased except as contemplated by Section 7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any replacement, modification, renewal or extension of Permitted Purchase Money Debt in connection with the funding obligations secured or financing of such fixed asset(sbenefited thereby is permitted by Section 7.02(d);
(c) Liens for Taxestaxes, assessments or other governmental charges not yet delinquent or which are being Properly Contestedcontested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debt;
(e) Liens consisting of deposits or pledges made in the Ordinary Course of Business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of Business;
(f) Liens arising as a matter of law in the Ordinary Course of Business which are subject to Third Party Agreements;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords mechanics’, materialmen’s, landlord’s, suppliers’, repairmen’s or other like Liens arising in the Ordinary Course ordinary course of Business with respect to obligations business which are (i) not due overdue for a period of more than 60 days or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto orwhich are being contested in good faith and by appropriate proceedings diligently conducted, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(qe) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA which has resulted or could reasonably be expected to result in liability, together with any other Lien imposed by ERISA, in an aggregate amount in excess of the Threshold Amount;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds, governmental contracts and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions (including zoning restrictions), covenants, encroachments and other similar encumbrances and title deficiencies affecting real property that, in the aggregate, are not substantial in amount, and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments, attachments and awards for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) Liens securing Indebtedness permitted under Section 7.02(f); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j) Liens arising from by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers so long as such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP;
(k) eases of the real properties of any Loan Party or any Subsidiary, in each case entered into in the ordinary course of the business of such Loan Party or Subsidiary so long as such leases and do not, individually or in the aggregate, (i) operating leases interfere in any material respect with respect to assets which are not owned by the ordinary conduct of the business of any Credit Loan Party or any Subsidiary or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(l) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash, Cash Equivalents and other investment property on deposit in one or more accounts maintained by any Loan Party or any Subsidiary, in each case granted in the precautionary ordinary course of business in favor of the bank or banks with which such accounts are maintained, solely securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(m) Liens on property of a person existing at the time such person is acquired or merged with or into or consolidated with any Loan Party or any Subsidiary to the extent securing Indebtedness permitted by Section 7.02 (and not created in anticipation or contemplation thereof); provided that such Liens do not extend to property not subject to such Liens at the time of acquisition (other than improvements thereon) and are no more favorable to the lienholders than such existing Lien;
(n) licenses of IP Rights granted by any Loan Party or any Subsidiary in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Loan Parties and their Subsidiaries;
(o) the filing of UCC financing statement filings statements solely as a precautionary measure in respect thereof connection with operating leases or consignment of goods;
(p) Liens securing Indebtedness incurred pursuant to Section 7.02(h); provided that (i) such Liens do not extend to, or encumber, property which constitutes Collateral and (ii) equipment such Liens extend only to the property (or other materials which are not owned by any Credit Party Equity Interests) of the Foreign Subsidiary incurring such Indebtedness or a Subsidiary located on the premises of such Credit Party or Foreign Subsidiary (but that is not in connection with, or as part of, the financing thereof) from time to time in the Ordinary Course of Business and the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l)Loan Party; and
(uq) other Liens securing obligations having Indebtedness outstanding in an aggregate principal amount not exceeding Five Million Dollars (to exceed $5,000,000)10,000,000; provided that if any such Lien attaches to any Collateral it is either junior to, or subordinated to, the Liens created under the Loan Documents pursuant to agreements in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (On Assignment Inc)
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, except assets or revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender created or any other Secured Party arising pursuant hereto or under to any other Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and, if the obligation secured by such Lien is modified, refinanced, refunded, extended, renewed or replaced, any Lien securing fixed assets (including in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price such modified, refinanced, refunded, extended, renewed or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of replaced obligation; provided that (i) the acquisition of the fixed asset(s) which were the subject thereof property covered thereby shall not be changed in category or scope and (ii) such Lien shall secure only those modifications, refinancings, refundings, extensions, renewals and replacements of the incurrence of Permitted Purchase Money Debt secured obligations that do not increase the outstanding principal amount thereof plus any accrued interest, premium, fee and reasonable out-of-pocket expenses payable in connection with the funding any such modification, refinancing, refunding, extension, renewal or financing of such fixed asset(s)replacement;
(c) Liens for Taxestaxes, assessments assessments, levies or other governmental charges of any Governmental Authority, in each case not yet delinquent overdue by more than 60 days or which are being Properly Contestedcontested in good faith (and, if necessary, by appropriate proceedings) for which adequate reserves with respect thereto have been established in accordance with GAAP;
(d) Liens (other than Liens for Taxes imposed by law or imposed under ERISA) arising as a matter which arise by operation of law and which are incurred in the Ordinary Course ordinary course of Businessbusiness, but only such as of landlords, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and mechanics’ Liens, which are not overdue for a period of more than 60 days or which are being contested in good faith (and, if (inecessary, by appropriate proceedings) payment of the obligations secured thereby is not yet due or is being Properly Contested; (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary; and (iii) such Liens do not secure Debtfor which adequate reserves with respect thereto have been established in accordance with GAAP;
(e) Liens consisting of incurred and pledges or deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under with workers’ compensation, unemployment insurance and other types of social security laws or similar legislationregulations, or to secure the performance of tenders, bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted any Lien imposed by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, and other obligations of a like nature incurred in the Ordinary Course of BusinessERISA;
(f) Liens arising as incurred and pledges or deposits made to secure the performance of bids, trade contracts, tenders, leases, statutory obligations, surety, customs and appeal bonds, performance bonds, customer deposits and other obligations of a matter of law similar nature incurred in the Ordinary Course ordinary course of Business which are subject to Third Party Agreementsbusiness;
(g) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiaryeasements, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easementszoning restrictions, rights-of-way, leases, subleases and similar charges, minor defects or irregularities in title, restrictions, covenants or other agreements of recordencroachments, survey and other non-monetary title exceptions imperfections and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(i) Liens on (A) acquired Property securing Debt permitted under Section 10.1(f) or (B) Property acquired pursuant to a Permitted Acquisition; provided that such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property subject to such Lien; (y) are applicable only to the Property real property of such Subsidiary or Property acquired (and proceeds thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made Person imposed by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder law or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute)which would not be expected to have a Material Adverse Effect;
(nh) statutory and common law rights of set-off and other similar rights and remedies as to deposits of cash, securities, commodities and other funds in favor of banks, other depositary institutions, securities or commodities intermediaries or brokerage, including, without limitation, Liens solely on arising under the general terms and conditions (Algemene Bank Voorwaarden) of any ▇member of the Dutch Bankers’ Association (Nederlandse Vereniging ▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder);
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection collecting bank arising in the ordinary course of business under Section 4-210 of the UCC on items Uniform Commercial Code in effect in the course relevant jurisdiction (or Section 4-208 in the case of collectionthe New York Uniform Commercial Code) and covering only the items being collected upon;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,000).
Appears in 1 contract
Sources: Term Loan Agreement (Stryker Corp)
Liens. Create The Borrower shall not, nor shall it permit any of its Subsidiaries to, create, assume, incur, or suffer to exist any Lien upon on the Property of the Borrower or any other Subsidiary of its Propertythe Borrower, except whether now owned or hereafter acquired, or assign any right to receive any income, other than the following (collectively, “Permitted Liens”):following:
(a) Liens in favor of Administrative Agent, LC Issuer, Swing Line Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentsecuring the Obligations;
(b) Liens securing fixed assets (including existing on the Closing Date and described in connection with Permitted Purchase Money Debt) to secure a portion of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)Schedule 6.2;
(c) Liens imposed by law, such as materialmen’s, mechanics’, builder’s, carriers’, workmen’s and repairmen’s liens, and other similar liens arising in the ordinary course of business securing obligations which are not overdue for Taxes, assessments a period of more than 60 days or other governmental charges not yet delinquent are being contested in good faith by appropriate procedures or being Properly Contestedproceedings and for which adequate reserves have been established;
(d) Liens (other than Liens for Taxes or imposed under ERISA) arising as a matter of law and in the Ordinary Course ordinary course of Businessbusiness out of pledges or deposits under workers compensation laws, but only if (i) payment of the obligations secured thereby is not yet due unemployment insurance, old age pensions, or is being Properly Contested; (ii) such Liens do not materially impair the value other social security or use of the Property retirement benefits, or materially impair operation of the business of any Borrower similar legislation to secure public or Subsidiary; and (iii) such Liens do not secure Debtstatutory obligations;
(e) Liens for taxes, assessment, or other governmental charges which are not yet due and payable or which are being actively contested in good faith by appropriate proceedings and for which adequate reserves for such items have been made in accordance with GAAP;
(f) Liens arising from precautionary UCC financing statements regarding leases to the extent such leases are permitted hereby;
(g) encumbrances consisting of deposits minor easements, zoning restrictions, or pledges made other restrictions on the use of real property that do not (individually or in the Ordinary Course aggregate) materially affect the value of Business the assets encumbered thereby or materially impair the ability of the Borrower or such other Subsidiary to use such assets in connection withits business, and none of which is violated in any material aspect by existing or proposed structures or land use to the extent such violation could reasonably be expected to result in a Material Adverse Change;
(h) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a depository institution;
(i) Liens on cash or securities pledged to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, surety and appeal bonds, government contracts, performance and return of money bonds, bids, trade contracts and leases (other than Debt)contracts, leases, statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)), performance bonds, or arising as a result of progress payments under government contracts, regulatory obligations and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness;
(fj) judgment and attachment Liens arising as a matter not giving rise to an Event of law in Default, provided that (i) any appropriate legal proceedings which may have been duly initiated for the Ordinary Course review of Business such judgment shall not have been finally terminated or the period within which are subject such proceeding may be initiated shall not have expired and (ii) no action to Third Party Agreementsenforce such Lien has been commenced;
(gk) Liens arising as a matter of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as securing Debt and not otherwise permitted under this Section 6.2; provided that (i) the aggregate principal amount of all Debt secured by such Liens are in existence for less than twenty (20) consecutive days or being Properly Contested; does not exceed 5% of the Net Worth of the Borrower and its consolidated Subsidiaries at any time, and (ii) such Liens the Borrower and its Subsidiaries are at all times subordinate in compliance with the covenants set forth in this Agreement, both before and after giving effect to Administrative Agent’s Liens; and (iii) the execution or enforcement each incurrence of such Liens is and continues to be effectively stayed and bonded on appeal;Debt; and
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties and their respective Subsidiaries;
(i) normal and customary rights of setoff upon deposits in favor of depository institutions, Liens of a collecting bank on Payment Items in the course of collection, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accounts;
(il) Liens on property of a person existing at the time such person is acquired or merged with or into or consolidated with the Borrower as a Subsidiary (A) acquired Property securing Debt permitted under Section 10.1(f) and not created in anticipation or (B) Property acquired pursuant to a Permitted Acquisitioncontemplation thereof); provided that such Liens (xi) are do not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary or the acquisition of the Property extend to property not subject to such Lien; Liens at the time of acquisition (y) are applicable only to the Property of such Subsidiary or Property acquired (and proceeds other than improvements thereof) and (z) do not attach to any other Property of the Credit Parties or any of their Subsidiaries ), and (ii) Liens securing Debt permitted under Section 10.1(f)(ii);
(k) So long as the Intercreditor Agreement is in effect, Liens in favor of the Term Loan Agent with respect to the Debt permitted under Section 10.1(b)(i);
(l) Liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payment of customs duties in connection with the importation of Goods;
(m) any interest or title of a lessor or sub-lessor under any lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease in the ordinary course of business or sublease or similar agreement or statute);
(n) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords or other like Liens arising in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under by Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate amount not exceeding Five Million Dollars ($5,000,0006.1(c).
Appears in 1 contract
Liens. Create Create, incur, assume or suffer to exist exist, any Lien upon on or with respect to any of its Property, except the following (collectivelywhether now owned or hereafter acquired, “Permitted Liens”):except:
(a) Liens created pursuant to the Loan Documents (including, without limitation, Liens on Cash Collateral in favor of Administrative Agent, LC Issuer, Swing Line the Swingline Lender or any other Secured Party arising pursuant hereto or under any other Loan Documentand/or the Issuing Lender);
(b) Liens securing fixed assets in existence on the Closing Date and described on Schedule 9.2, and the replacement, renewal or extension thereof (including Liens incurred, assumed or suffered to exist in connection with Permitted Purchase Money Debtany refinancing, refunding, renewal or extension of Indebtedness pursuant to Section 9.1(c) (solely to secure a portion the extent that such Liens were in existence on the Closing Date and described on Schedule 9.2)); provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on the Closing Date, except for products and proceeds of the purchase price or financing thereof so long as such Liens are incurred not more than ten (10) days after the later of (i) the acquisition of the fixed asset(s) which were the subject thereof and (ii) the incurrence of Permitted Purchase Money Debt in connection with the funding or financing of such fixed asset(s)foregoing;
(c) Liens for Taxestaxes, assessments or and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet delinquent due or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or (ii) which are being Properly Contestedcontested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;
(d) Liens (other than Liens the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for Taxes labor, materials, supplies or imposed under ERISA) arising as a matter of law and rentals incurred in the Ordinary Course ordinary course of Businessbusiness, but only if which (i) payment are not overdue for a period of more than thirty (30) days, or if more than thirty (30) days overdue, no action has been taken to enforce such Liens and such Liens are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the obligations secured thereby is not yet due or is being Properly Contested; extent required by GAAP and (ii) such Liens do not not, individually or in the aggregate, materially impair the value or use of thereof in the Property or materially impair operation of the business of Holdings or any Borrower or Subsidiary; and (iii) such Liens do not secure Debtof its Subsidiaries;
(e) Liens consisting of deposits or pledges made in the Ordinary Course ordinary course of Business business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of tenders, bids, trade contracts and leases (other than DebtIndebtedness), statutory obligations, surety bonds (other than bonds related to judgments or Adverse Proceedings unless permitted by Section 10.2(g)litigation), performance bonds, or arising as a result of progress payments under government contracts, bonds and other obligations of a like nature incurred in the Ordinary Course ordinary course of Businessbusiness, in each case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any portion of the Collateral on account thereof;
(f) Liens arising as a matter of law encumbrances in the Ordinary Course nature of Business zoning restrictions, rights to use real property, easements and restrictions of record on the use of real property, which are subject to Third Party Agreementsdo not, in any case, detract from the value of such property or impair the use thereof in the ordinary conduct of business;
(g) Liens arising as a matter from the filing of law by virtue of a judgment or judicial order against any Credit Party or Subsidiary, or any Property of a Credit Party or Subsidiary, as long as (i) such Liens are precautionary UCC financing statements relating solely to personal property leased pursuant to Operating Leases entered into in existence for less than twenty (20) consecutive days or being Properly Contested; (ii) such Liens are at all times subordinate to Administrative Agent’s Liens; and (iii) the execution or enforcement of such Liens is and continues to be effectively stayed and bonded on appeal;
(h) easements, rights-of-way, restrictions, covenants or other agreements of record, survey and other non-monetary title exceptions and other similar charges or encumbrances on Real Estate, which do not interfere with the ordinary course of business of the Credit Parties Borrower and their respective its Subsidiaries;
(h) Liens securing Indebtedness permitted under Section 9.1(d); provided that (i) normal such Liens shall be created substantially simultaneously with the acquisition, repair, improvement or lease, as applicable, of the related Property, (ii) such Liens do not at any time encumber any property other than the Property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased and customary rights (iv) the principal amount of setoff upon deposits in favor Indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of depository institutionsthe original price for the purchase, Liens repair improvement or lease amount (as applicable) of a collecting bank on Payment Items in such Property at the course time of collectionpurchase, and other similar Liens granted in the Ordinary Course of Business securing customary account fees and charges payable in respect of depositary accountsrepair, improvement or lease (as applicable);
(i) Liens on (A) acquired Property securing Debt permitted judgments for the payment of money not constituting an Event of Default under Section 10.1(f10.1(m) or securing appeal or other surety bonds relating to such judgments;
(Bj) Liens on Property (i) of any Subsidiary which are in existence at the time that such Subsidiary is acquired pursuant to a Permitted AcquisitionAcquisition and (ii) of the Borrower or any of its Subsidiaries existing at the time such tangible property or tangible assets are purchased or otherwise acquired by the Borrower or such Subsidiary thereof pursuant to a transaction permitted pursuant to this Agreement; provided that that, with respect to each of the foregoing clauses (i) and (ii), (A) such Liens (x) are not incurred in connection with, or in anticipation of, a Person becoming a Subsidiary such Permitted Acquisition, purchase or the acquisition of the Property subject to other acquisition, (B) such Lien; (y) Liens are applicable only to the Property of specific Property, (C) such Subsidiary Liens are not “blanket” or Property acquired all asset Liens, (and proceeds thereofD) and (z) such Liens do not attach to any other Property of the Credit Parties Holdings or any of their its Subsidiaries and (iiE) the Indebtedness secured by such Liens securing Debt is permitted under Section 10.1(f)(ii9.1(e) of this Agreement);
(k) So long as (i) Liens of a collecting bank arising in the Intercreditor Agreement is in effect, Liens in favor ordinary course of business under Section 4-210 of the Term Loan Agent Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of any depositary bank in connection with statutory, common law and contractual rights of set-off and recoupment with respect to any Deposit Account of the Debt permitted under Section 10.1(b)(i)Borrower or any Subsidiary thereof;
(li) contractual or statutory Liens of landlords to the extent relating to the property and assets relating to any lease agreements with such landlord, and (ii) contractual Liens of suppliers (including sellers of goods) or customers granted in favor the ordinary course of customs and revenue authorities arising as a matter of Applicable Law business to secure payment of customs duties in connection with the importation of Goodsextent limited to the property or assets relating to such contract;
(m) any interest or title of a licensor, sublicensor, lessor or sub-lessor sublessor with respect to any assets under any license or lease of Real Estate made by any Credit Party or any of its Subsidiaries as lessee or sub-lessee, to the extent permitted hereunder, and any Liens on such lessor’s or sub-lessor’s estate thereunder or arising from the acts or omission of such lessor or sub-lessor and any Liens of such lessor (whether contractually granted in such lease agreement entered into in the ordinary course of business which do not (i) interfere in any material respect with the business of Holdings or sublease its Subsidiaries or similar agreement materially detract from the value of the relevant assets of Holdings or statute);its Subsidiaries or (ii) secure any Indebtedness; and
(n) Liens solely not otherwise permitted hereunder on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Credit Party or any of its Subsidiaries in connection with any letter of intent, or purchase agreement permitted hereunder;
(o) leases in respect of real property on which facilities owned or leased by any Credit Party or any of its Subsidiaries are located, unless such leases are expressly prohibited by assets other than the terms of this Agreement or the other Loan Documents
(p) mechanics’, workers’, materialmen’s, carriers’, warehousemen’s, landlords Collateral securing Indebtedness or other like Liens arising obligations in the Ordinary Course of Business with respect to obligations which are (i) not due or (ii) Properly Contested; provided, that no Lien has been filed with respect thereto or, if any such Lien shall have been filed, a stay of enforcement of any such Lien shall be in effect; provided, further that adequate reserves with respect thereto are maintained on the books of the applicable Person;
(q) Liens arising from (i) operating leases with respect to assets which are not owned by any Credit Party or any Subsidiary and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Credit Party or Subsidiary located on the premises of such Credit Party 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 the precautionary UCC financing statement filings in respect thereof;
(r) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(s) Liens granted to secure Debt permitted under Section 10.1(m) in connection with the financing of insurance premiums;
(t) Liens existing on the Closing Date and listed on Schedule 10.2, including Liens securing Permitted Refinancing Debt permitted under Section 10.1(l); and
(u) other Liens securing obligations having an aggregate principal amount not exceeding Five Million Dollars (to exceed $5,000,000)5,000,000 at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Media General Inc)