Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except: (a) Liens existing on the date of this Agreement and set forth on Schedule 6.08; (b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA; (d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person; (e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business; (f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b); (g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority; (h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof; (i) Liens securing the Obligations created or arising under the Loan Documents; (j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent; (k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; (l) 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(j); and (m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Trex Co Inc), Credit Agreement (Trex Co Inc)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will createCreate, incur, assume or suffer permit to exist any Lien on any asset property or assets (including stock or other securities of Subsidiaries) now owned or hereafter acquired by itit or on any income or rights in respect of any thereof, except:
(a) Liens existing on securing Indebtedness (other than Indebtedness described in clauses (b) through (k) below) to the date extent and only to the extent that the aggregate amount of this Agreement and set forth on Schedule 6.08;
Priority Indebtedness shall not exceed $200,000,000 at any time; (b) Liens for taxes(including deposits) in connection with or to secure performance of bids, assessments tenders, contracts (other than contracts creating or evidencing or executed in connection with the incurrence of Indebtedness) or leases (other than Capital Lease Obligations) or to secure statutory obligations, surety or appeal bonds or indemnity, performance or similar chargesbonds; (c) any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary; provided, however, 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 Company or any Subsidiary; (d) Liens for taxes not yet due or which are being contested in compliance with Section 5.03; (e) carriers', warehousemen's, mechanic's, materialmen's, repairmen's or other like Liens arising in the ordinary course of business and securing obligations which are not due or which are being contested in compliance with Section 5.03; (f) pledges and deposits and other liens made in the ordinary course of business in compliance with workmen's compensation, unemployment insurance and other social security laws or regulations; (g) zoning restrictions, easements, rights-of-way restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that which, in the aggregate, are not yet due substantial in amount and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on do not materially detract from the books value of the applicable Person in accordance real property subject thereto or interfere with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on Company or any title insurance commitment or survey provided to of the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
Subsidiaries; (h) Liens (including deposits) in connection with self-insurance; (i) judgment or other similar Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations legal proceedings in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value principal amount (net of amounts for which relevant insurance providers have delivered written acknowledgements of coverage) not to exceed $5,000,000.125,000,000, provided that the execution or other enforcement of such liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings;
Appears in 2 contracts
Sources: Credit Agreement (Cummins Engine Co Inc), Credit Agreement (Cummins Engine Co Inc)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will Company shall create, assume or suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any asset of its property or assets, whether now owned or hereafter acquired by it, exceptacquired; provided that this Section 5.9 shall not apply to the following:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(bi) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are taxes not yet due and payable or that are being actively contested in good faith and with due diligence by appropriate proceedings and with respect to for which adequate reserves with respect thereto are maintained on the books of the applicable Person shall have been established in accordance with GAAP;
(cii) pledges other statutory Liens incidental to the conduct of its business or deposits made in the ordinary course ownership of business to secure payment of workers’ compensation, to participate in any fund its property and assets that (A) were not incurred in connection with workers’ compensationthe incurring of Indebtedness or the obtaining of advances or credit, unemployment insurance, old-age pensions and (B) do not in the aggregate materially detract from the value of its property or other social security programs, assets or for other similar purposes, other than any Lien imposed by ERISAmaterially impair the use thereof in the operation of its business;
(diii) Liens on property or assets of mechanicsa Subsidiary to secure obligations of such Subsidiary to Borrower or a Guarantor of Payment;
(iv) any Lien granted to Agent, materialmenfor the benefit of the Lenders (and affiliates thereof that hold Secured Obligations);
(v) the Liens existing on the Closing Date as set forth in Schedule 5.9 hereto and replacements, warehousemenextensions, carriers renewals, refundings or refinancings thereof, but only to the extent that the amount of debt secured thereby, and the amount and description of property subject to such Liens, shall not be increased;
(vi) purchase money Liens on fixed assets securing the loans and Capitalized Lease Obligations pursuant to Section 5.8(b) or (f) hereof, provided that such Lien is limited to the purchase price and only attaches to the property being acquired;
(vii) easements or other like liens, securing obligations incurred minor defects or irregularities in title of real property not interfering in any material respect with the use of such property in the ordinary course business of business that: any Company;
(viii) any Lien on fixed assets owned by a Company as a result of an Acquisition permitted pursuant to Section 5.13 hereof, so long as (A) such Lien was not created at the time of or in contemplation of such Acquisition, and (B) such Lien is released within one hundred eighty (180) days after such Acquisition (unless (1) are not overdue for a period Borrower shall have obtained the prior written consent of more than thirty (30) days; Agent and the Required Lenders, or (2) are being contested diligently in good faith such Lien would otherwise be permitted pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b5.9 hereof);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(iix) Liens securing Indebtedness permitted pursuant to Section 5.8(h) hereof, so long as such Liens (A) only attach to the Obligations created or arising under the Loan Documents;insurance policies being financed, including any return premiums, dividend payments and loss payments that reduce unearned premiums, and (B) are expressly subject to Agent’s rights as a loss payee and mortgagee in such insurance policies; or
(jx) other Liens, in addition to the Liens securing Debt listed above, not incurred by the Borrower or any Subsidiary in connection with any NMTC Transactionthe incurring of Indebtedness, provided that (i) such Liens encumber only securing amounts, in the assets acquired with the proceeds of such Debtaggregate for all Companies, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed Two Hundred Fifty Thousand Dollars ($5,000,000250,000) at any time.
Appears in 2 contracts
Sources: Credit and Security Agreement (Shiloh Industries Inc), Credit and Security Agreement (Shiloh Industries Inc)
Negative Pledge. No Loan Party Neither the Borrower nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a1) Liens existing on the date of this Agreement and set forth securing Debt outstanding on Schedule 6.08the Effective Date in an aggregate principal amount not exceeding $43,000,000;
(b2) Liens for taxes, assessments or similar charges, incurred any Lien in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books favor of the applicable Person in accordance with GAAPCollateral Agent pursuant to the Collateral Documents;
(c3) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAon any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring or constructing such asset, provided that such Lien attaches to such asset concurrently with or within 18 months after the acquisition or completion of construction thereof;
(d4) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in Debt owing by any Guarantor to the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable PersonBorrower;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f5) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses (a) through or (ec) of this Section; , provided that (i) such Debt is not secured by any additional assets, and (ii) the amount of such Debt secured or benefited thereby by any such Lien is not increased except as contemplated increased;
(6) any Lien on Margin Stock;
(7) Liens for taxes, assessments or governmental charges or levies either not yet due or the payment of which is not at the time required by Section 6.22(b)5.13;
(8) Liens of landlords, (iii) carriers, warehousemen, mechanics, materialmen and other similar Persons incurred in the direct ordinary course of business for sums either not yet due or any contingent obligor with respect thereto the payment of which is not changed, and (iv) any renewal or extension of at the obligations secured or benefited thereby is permitted time required by Section 6.22(b5.13;
(9) Liens (other than any Lien created or imposed under ERISA and Liens on the Collateral) incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive in any case of obligations incurred in connection with the borrowing of money or the obtaining of advances of credit);
(g10) any attachment or judgment Lien imposed arising in connection with court proceedings, provided that (i) the execution or other enforcement of such Lien is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings diligently conducted, and (ii) such reserve or other appropriate provision, if any, as a result shall be required by GAAP shall have been made therefor and neither the Borrower's nor any such Subsidiary's title to or right to use any of a taking under the exercise its property is impaired in any material respect by reason of the power of eminent domain by any governmental body or by any Person acting under governmental authoritysuch contest;
(h11) minor survey exceptions or minor encumbranceseasements, easements or reservationslicenses, or rights of others for rights-of-way, utilities way and other rights and privileges in the nature of easements and similar purposes, or zoning or other restrictions as Liens incidental to the use ownership of real propertiesproperty and not incurred in connection with the borrowing of money or the obtaining of advances of credit, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use not, individually or in the operation aggregate, interfere with the ordinary conduct of the business of the Borrower or any Subsidiary or materially detract from the value of the properties subject to any such Liens;
(12) Liens on fixed assets (1) of any Person at the time such Person becomes a Subsidiary and its Subsidiaries not created in contemplation of such event, (2) of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Subsidiary and other easements, covenants, restrictions, reservations, exceptions not created in contemplation of such event and other matters shown on any title insurance commitment or survey provided to the Administrative Agent (3) existing prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred acquisition of such fixed assets by the Borrower or any a Subsidiary and not created in connection with any NMTC Transactioncontemplation of such acquisition, provided that (i) such the aggregate principal amount outstanding of Debt secured by Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that this paragraph (il) such Liens do may not exceed at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, 5% of the property being acquired on the date of acquisition;
(l) 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(j)Consolidated Total Capitalization; and
(m13) Liens on assets other Liens affecting property with than the Collateral not otherwise permitted by the foregoing clauses of this Section securing Debt (other than indebtedness represented by the Notes) in an aggregate fair value principal amount at any time outstanding not to exceed $5,000,0005% of Consolidated Total Capitalization.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Carmike Cinemas Inc), Credit Agreement (Carmike Cinemas Inc)
Negative Pledge. No Loan Party The Borrower will not, nor will the Borrower permit any Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
: (ai) Liens those Liens, if any, described on Schedule 5.7, concerning existing on debt of the date of this Agreement and Borrower, to be set forth on Schedule 6.08;
(b) Liens for taxesand described more particularly therein, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and together with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; such Lien, provided that (i) such Debt debt is not secured by any additional assets, and the amount of such debt secured by any such Lien is not increased; (ii) Liens incidental to the conduct of its business or the ownership of its Properties which (A) do not secure debt and (B) do not in the aggregate materially detract from the value of its Properties or materially impair the use thereof or the operation of its business, including, without limitation, easements, rights of way, restrictive covenants, zoning and other similar restrictions on real property; (iii) materialmen's mechanics', warehousemen's carriers', landlords' and other similar statutory Liens which secure debt or other obligations that are not past due, or, if past due are being contested in good faith by the Borrower or the appropriate Subsidiary by appropriate proceedings; (iv) Liens for taxes not delinquent or taxes being contested in good faith and by appropriate proceedings; (v) pledges or deposits in connection with worker's compensation, unemployment insurance and other social security legislation; (vi) deposits to secure performance of bids, trade contracts, leases, statutory obligations (to the extent not excepted elsewhere herein); (vii) grants of security and rights of setoff in accounts, securities and other properties held at banks or financial institutions to secure the payment or reimbursement under overdraft, letter of credit, acceptance and other credit facilities; (viii) rights of setoff, banker's liens and other similar rights arising solely by operation of law; (ix) Pur chase Money Liens; (x) Liens on any Properties acquired by Borrower or any Subsidiary subsequent to the Closing Date, to the extent that (A) such Liens are existing at the time of acquisition, (B) the debt secured thereby is not secured by any other Properties of Borrower or such Subsidiary except the acquired Properties, (C) the amount of such debt so secured or benefited thereby is not increased except as contemplated by Section 6.22(b), at or subse quent to the acquisition and (iiiD) the direct total amount of all such debt secured by all such acquired Properties does not exceed at any time, in aggregate amount, fifteen percent (15%) of Tangible Net Worth; together with any Lien arising out of the refinancing, extension, renewal or refunding of any contingent obligor with respect thereto debt secured by any such Lien, provided that such debt is not changedsecured by any additional assets, and (iv) any renewal or extension the amount of the obligations such debt secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by such Lien is not increased; (xi) capital leases made in the ordinary course of business (but excluding, however, sale-leaseback transactions in any Person acting under governmental authority;
(hevent) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others in which there is no provision for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as title to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided leased Property to the Administrative Agent prior pass to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any such Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only at the assets acquired with expiration of the proceeds of such Debt, lease term or as to which no bargain purchase option exists; and (iixii) such Liens are subordinated to Liens securing the Obligations rights of lessors in a manner satisfactory respect of Properties leased to the Administrative Agent;
(k) Liens securing Debt permitted Borrower or its Subsidiaries under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000operating leases.
Appears in 2 contracts
Sources: Credit Agreement (Apple South Inc), Credit Agreement (Apple South Inc)
Negative Pledge. No Loan Party Neither Newark, either Newark Subsidiary, VCP Exportadora nor any Subsidiary of a Loan Party will VCP shall create, assume or suffer to exist (or permit any of their respective Subsidiaries to create, assume or suffer to exist) any Lien on any asset of its Property, whether now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;Permitted Liens,
(b) Liens for taxesthat arise pursuant to one or more final judgment(s), assessments order(s), decree(s) and/or award(s) not in excess of $10,000,000 (or similar charges, incurred its equivalent in any other currency) in the ordinary course aggregate for the payment of business that are not yet due and payable money if discharged within 60 days or that are being contested fully bonded or covered by insurance where the surety or the insurer, as the case may be, has admitted liability in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;such judgment(s), order(s), decree(s) and/or award(s),
(c) pledges or deposits made in Liens created under the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;Loan Documents,
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred granted in connection with the Other Facility (including Liens on the Sales Collateral and the Collection Account in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently manner described herein and in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;Security Agreement), and
(e) good faith pledges or deposits other Liens granted to secure the performance other Debt as permitted by Section 8.6(a) or other obligations; provided that: (i) no such Liens shall cover any of bids, trade contracts and leases VCP Exportadora's or VCP's Products exported outside Brazil (other than Debtor identified to be so exported), statutory obligations(ii) with respect to Newark and the Newark Subsidiaries only, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) no such Liens shall cover any Lien arising out of the refinancingCollateral or any Capital Stock of Aracruz (or any interests therein, extensionincluding dividends payable thereon), renewal or refunding and (iii) excluding all of any the Debt secured by any Lien permitted by any of Liens described in clauses (a) through (ed) above, the aggregate outstanding principal amount of this Section; provided that (i) such Debt is not and other obligations secured by any additional assets, Liens on tangible Property (iiincluding real property) the amount secured shall not exceed $450,000,000 (or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not equivalent in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(ecurrency); provided that the lenders or holders of such Debt shall consist of BNDES, export credit agencies or multilateral financial institutions; and provided further that up to $50,000,000 (ior its equivalent in any other currency) of such Liens do not at Debt may be lent by or held by any time encumber Person. Notwithstanding anything herein or elsewhere in the Loan Documents to the contrary, in no event shall Newark or any property of the Newark Subsidiaries permit there to be any Lien on any of the Collateral other than Permitted Liens of the property financed by such Debt type described in clauses (a) and (iib) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on definition thereof and Liens pursuant to the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Security Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Votorantim Pulp & Paper Inc), Credit Agreement (Votorantim Pulp & Paper Inc)
Negative Pledge. No Loan Party nor Until such time as all of the payment Obligations of the Borrower have been Performed in full, Borrower agrees not to pledge, encumber or assign (either collaterally or outright) (or permit such pledge, encumbrance or assignment) to any Subsidiary Person or grant to any Person (or permit the granting to any Person) of a Loan Party will create, assume lien on or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred a security interest in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) any developer or declarant's rights under the Timeshare Declaration other than in favor of Lender (unless an intercreditor agreement, in form and substance reasonably satisfactory to Lender and such Debt other lender, is not secured by any additional assetsexecuted, addressing such developer or declarant's rights), (ii) any contracts, licenses, permits, plans or other intangibles used in connection with the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)Property, the marketing and sale of Timeshare Inventory and/or the management and/or operations of the Property, (iii) the direct Reservation System (except that a non-exclusive license to use the Reservation System granted to any Person, including Lender, shall not be deemed a pledge, encumbrance or any contingent obligor with respect thereto is not changedassignment (either collaterally or outright) or the granting of a lien or security interest in violation of this subsection 6.2(e)), and (iv) any renewal or extension of property management agreements in any way relating to the obligations secured or benefited thereby is permitted by Section 6.22(b);
Property, including, without limitation, the Timeshare Management Agreement, and all replacements and substitutions thereof, (gv) any Lien imposed as a result sales or marketing agreements in effect from time to time concerning the sale and marketing of Timeshare Inventory at the Property, (vi) any other agreements now or hereafter in existence related to the development or operation of a taking under timeshare project at the exercise of the power of eminent domain by Property, including management, marketing, maintenance and service contracts, (vii) any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrancesintangibles, easements or reservations, or rights of others for rights-of-way, utilities licenses and other similar purposes, or zoning or other restrictions as permits with respect to the use Property; or (viii) any right to vote on matters with respect to which owners of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such DebtTimeshare Inventory may vote, and (ii) such Liens Borrower shall not grant any proxy rights in that regard. The aforementioned negative pledge shall be included within the financing statements that are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt filed and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.recorded against Borrower. 6284.345.1224403.10 39 4/16/2018
Appears in 2 contracts
Sources: Acquisition Loan and Security Agreement (BBX Capital Corp), Acquisition Loan and Security Agreement (Bluegreen Vacations Corp)
Negative Pledge. No Loan Party nor The Company will not, and will not cause or permit any Subsidiary of a Loan Party its Subsidiaries to, directly or indirectly, create, assume or suffer to exist any Lien on any Pledged Collateral other than Prior Liens or any other Lien permitted by the Security Agreement. The Company will not, and will not cause or permit any of its Subsidiaries to, directly or indirectly, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itit which does not constitute Pledged Collateral, except:except (collectively, the "Permitted Liens"):
(a) Liens existing on securing Financing Leases permitted under Section 6.8(a)(iii), so long as such Liens do not cover any assets or property of the date Company or any of this Agreement and set forth on Schedule 6.08its Subsidiaries other than the asset or property so financed;
(b) Liens securing obligations permitted by Section 6.8 which obligations represent all or part of the purchase price of equipment purchased by the Company or any of its Subsidiaries for taxesuse in its business; provided, assessments however, that such Liens shall not encumber any asset or property of the Company or any of its Subsidiaries other than such equipment;
(c) (i) statutory and common law Liens of landlords under leases to which the Company or any of its Subsidiaries is a party and (ii) Liens of carriers, warehousemen, mechanics and materialmen or other similar chargesstatutory Liens, in each case incurred in the ordinary course of business that for sums the payment of which is not delinquent or which are the subject of good faith proceedings by the Company or any of its Subsidiaries ;
(d) Liens incurred on deposits made in the ordinary course of business in connection with workers' compensation, performance bonds, unemployment insurance and other types of social security, other than any Lien imposed by or under ERISA;
(e) Liens in respect of judgments or orders for the payment of money which in the aggregate at any one time do not exceed $15,000,000;
(f) Liens imposed by a Governmental Authority for taxes, assessments or charges not yet due and payable or that which are being be- 36 ing contested in good faith and with due diligence by appropriate proceedings and with respect to which if adequate reserves with respect thereto are maintained on the books of the applicable Person Company or the affected Subsidiary, as the case may be, in accordance with GAAP;
(cg) pledges or deposits made easements, rights of way, permits, licenses, zoning ordinances, covenants, restrictions, defects, minor irregularities of title and other similar Liens on property which in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding case of any Debt secured by any Lien permitted by any particular parcel of clauses (a) through (e) real property do not materially detract from the value or utilization of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authorityreal property;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Liens created pursuant to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;Collateral Documents; and
(i) any Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection on shares of FPA Medical Management, Inc. encumbered pursuant to arrangements with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds regulatory authorities relating to such judgments) not constituting an Event capital adequacy requirements of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Subsidiaries.
Appears in 2 contracts
Sources: Bridge Securities Purchase Agreement (Oxford Health Plans Inc), Bridge Securities Purchase Agreement (Oxford Health Plans Inc)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will createCreate, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on securing the date of this Agreement and set forth on Schedule 6.08Obligations pursuant to the Loan Documents;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in assets of the ordinary course Borrower or its Subsidiaries existing on the Effective Date set forth on Schedule 7.2; provided, that, such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations), warehousemenprovided, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1i) are not overdue for a period of more than thirty such Lien secured Indebtedness permitted by Section 7.1(c); (30ii) days; such Lien attaches to such asset concurrently or within ninety (290) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on days after the books acquisition, improvement or completion of the applicable Personconstruction 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;
(e) good faith pledges extensions, renewals, or deposits to secure the performance replacements of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of referred to in clauses (a) through (ed) of this SectionSection 7.2; provided that (i) such Debt is not provided, that, the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of replacement is limited to the obligations secured or benefited thereby is permitted by Section 6.22(b)assets originally encumbered thereby;
(f) Liens and/or offset rights securing the DOJ Payment Obligation;
(g) Liens pursuant to the PMC Obligations; provided, that, such Liens do not (i) extend to any Lien imposed as a result asset other than the assets from which such obligations arise, and (ii) the aggregate amount of a taking under such obligations do not exceed the exercise cost of the power of eminent domain by any governmental body or by any Person acting under governmental authorityaggregate assets subject to such Liens;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist Liens on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary assets acquired in connection with a Permitted Acquisition and securing any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations Acquired Indebtedness incurred in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt connection therewith as permitted under Section 6.22(e7.1(j); provided that (i) provided, that, such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j)Indebtedness; and
(mi) other Liens affecting property with securing Indebtedness outstanding in an aggregate fair value principal amount not to exceed $5,000,0005,000,000 at any time; provided, that, no such Lien shall extend to or cover any Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Rotech Healthcare Holdings Inc.), Credit Agreement (Rotech Healthcare Holdings Inc.)
Negative Pledge. No Loan Party nor The Company will not, and will not permit any Material Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien securing Debt on any asset now owned or hereafter acquired by itRestricted Property, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Effective Date;
(b) any Lien existing on any asset of any Person at the time such Person becomes (or merges or combines with) a Material Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset (and improvements thereto and proceeds thereof) securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring such asset; provided that such Lien attaches to such asset concurrently with or within one year after the acquisition thereof;
(d) any Lien on any improvements constructed on any property of the Company or any such Material Subsidiary and any theretofore unimproved real property on which such improvements are located securing Debt incurred for the purpose of financing all or any part of the cost of constructing such improvements; provided that such Lien attaches to such improvements within one year after the later of (i) completion of construction of such improvements and (ii) commencement of full operation of such improvements;
(e) any Lien existing on any asset prior to the acquisition thereof by the Company or a Material Subsidiary and not created in contemplation of such acquisition;
(f) Liens on property of the Company or a Material Subsidiary in favor of any Governmental Authority to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any Debt incurred for taxes, assessments the purpose of financing all or similar charges, incurred any part of the purchase price or the cost of construction of the property subject to such Liens;
(g) Liens resulting from judgments that have been stayed or bonded or not exceeding $500,000,000;
(h) Liens on property of any Material Subsidiary in favor of the Company and/or one or more Material Subsidiaries;
(i) any Lien created or subsisting in order to comply with Section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) or pursuant to Section 7e of the German Social Law Act No. 4 (Sozialgesetzbuch IV);
(j) any Lien entered into by the Company or any Material Subsidiary in the ordinary course of business that are not yet due its banking arrangements for the purpose of netting debit and payable or that are being contested in good faith credit balances and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
arising under the general terms and conditions of banks or Sparkassen (dAllgemeine Geschäftsbedingungen der Banken oder Sparkassen) Liens of mechanics, materialmen, warehousemen, carriers with whom the Company or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for relevant Material Subsidiary maintains a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred banking relationship in the ordinary course of business;
(fk) Liens not otherwise permitted by the foregoing clauses of this Section securing Debt in an aggregate principal amount at any time outstanding not to exceed the greater of (x) 15% of Consolidated Net Tangible Assets (measured at the time of incurrence of such Debt) and (y) $7,500,000,000; and
(l) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses (a) through (e) of this SectionSection 5.03; provided that (i) such Debt is not increased and is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt improvements thereon and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000proceeds thereof.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Linde PLC), 364 Day Credit Agreement (Linde PLC)
Negative Pledge. No Holdings and the Borrower will not, and will not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by itacquired, exceptfor the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by:
(a) Liens existing on (i) Requirements of Law, (ii) any Loan Document, (iii) any documentation relating to any Permitted Receivables Financing, (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(v), 6.01(a)(viii) or 6.01(a)(xxvii) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided that with respect to Indebtedness referenced in (A) clauses (v) and (vii) above, such restrictions shall be no more restrictive in any material respect than the date restrictions and conditions in the Loan Documents or, in the case of this Agreement Junior Financing, are market terms at the time of issuance and set forth on Schedule 6.08(B) clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
(b) Liens for taxescustomary restrictions and conditions existing on the Effective Date and any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to Holdings, the Borrower or any Restricted Subsidiary;
(g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries;
(h) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries on cash or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereofdeposits constituting Permitted Encumbrances);
(i) Liens securing restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except to the Obligations created extent any such amendment, modification or arising under replacement expands the Loan Documentsscope of any such restriction or condition;
(j) Liens securing Debt incurred customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) Section 6.02 and applicable solely to such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;joint venture; and
(k) Liens securing Debt permitted under Section 6.22(e); provided customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as Holdings has determined in good faith that (i) such Liens do net worth provisions could not at any time encumber any property other than reasonably be expected to impair the property financed by such Debt ability of Holdings and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating its Subsidiaries to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000meet their ongoing obligations.
Appears in 2 contracts
Sources: First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries (other than Carrier Enterprise) to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
(a) Liens existing on Liens, if any, created in favor of the date Administrative Agent for the benefit of this Agreement and set forth on Schedule 6.08the Lenders pursuant to the Loan Documents;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any such Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAsuch Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousemen, carriers or other like liens, securing obligations incurred that (i) the principal amount of the Indebtedness secured by such Liens does not exceed $20,000,000 in the ordinary course of business that: aggregate at any time outstanding, (1ii) are not overdue for a period of more than thirty such Liens attach to such assets concurrently or within ninety (3090) days; days after the acquisition, improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction thereof; (iii) such Liens do not extend to any other assets; and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets;
(e) good faith pledges any Lien (i) existing on any asset of any Person at the time such Person becomes such a Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or deposits into the Borrower or any such Subsidiary of the Borrower or (iii) existing on any asset prior to secure the performance acquisition thereof by the Borrower or any such Subsidiary of bidsthe Borrower; provided, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred that any such Lien was not created in the ordinary course contemplation of businessany of the foregoing and any such Lien secures only those obligations which it secures on the date that such Person becomes such a Subsidiary or the date of such merger or the date of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 Securitization Transaction permitted by Section 6.22(b7.6(c);
(g) extensions, renewals, or replacements of any Lien imposed as a result referred to in paragraphs (a) through (f) of a taking under this Section 7.2; provided, that the exercise principal amount of the power of eminent domain by Indebtedness secured thereby is not increased and that any governmental body such extension, renewal or by any Person acting under governmental authority;replacement is limited to the assets originally encumbered thereby; and
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use Liens arising in the operation ordinary course of the business of the Borrower and its Subsidiaries and other easementsor such Subsidiary of the Borrower, covenantsas applicable; provided, restrictionsthat the principal amount of the Indebtedness secured by such Liens shall not exceed $20,000,000 in the aggregate at any time outstanding. For purposes of this Section, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred entry by the Borrower or any such Subsidiary into a true lease or true bailment arrangement which contains a provision purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ in the event that such arrangement is determined not to constitute a true lease or true bailment and the filing of a precautionary UCC financing statement in connection with any NMTC Transactiontherewith shall not constitute the creation, provided that (i) incurrence, assumption or sufference of a Lien unless, under applicable law, such Liens encumber only the arrangement is determined not to constitute a true lease or true bailment arrangement and a security interest or other interest in or lien on property or assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (Borrower or appeal any such Subsidiary has in fact been granted or other surety bonds relating deemed to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000have been granted.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Watsco Inc), Revolving Credit Agreement (Watsco Inc)
Negative Pledge. No The Borrower will not, and will not permit any Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by it, exceptfor the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by:
(a) Liens existing on (i) Requirements of Law, (ii) any Loan Document, (iii) the date DK Note Documents,[reserved], (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(v), 6.01(a)(viii) or 6.01(a)(xxvii) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided that with respect to Indebtedness (A) referred to in clauses (iv) and (v) above, such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of this Agreement Junior Financing, are market terms at the time of issuance and set forth on Schedule 6.08(B) referred to clauses (v) and (vii) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
(b) Liens for taxescustomary restrictions and conditions existing on the Effective Date and any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, service agreements, licenses, sublicenses, covenants not to sue and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any other Subsidiary;
(g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by a Subsidiary that is not a Loan Party to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or are market terms at the time of issuance and are imposed solely on such Subsidiary and its Subsidiaries;
(h) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable (or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained other restrictions on the books of the applicable Person in accordance with GAAP;
(c) pledges cash or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(bconstituting Permitted Encumbrances);
(gi) restrictions set forth on Schedule 6.07 and any Lien imposed as a result extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of a taking under the exercise of the power of eminent domain by any governmental body such restriction or by any Person acting under governmental authoritycondition;
(hj) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities customary provisions in joint venture agreements and other similar purposesagreements applicable to joint ventures permitted by Section 6.02 and applicable solely to such joint venture; and
(k) customary net worth provisions contained in real property leases entered into by Subsidiaries, or zoning or other restrictions so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the use of real properties, which are necessary for the conduct of the activities ability of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair to meet their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000ongoing obligations.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Vacasa, Inc.), Revolving Credit Agreement (Vacasa, Inc.)
Negative Pledge. No Loan Party nor The Company will not, and will not permit any Subsidiary of a Loan Party will its Material Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien on upon or with respect to any asset now owned of its present or hereafter acquired by itfuture Property, except:
(a) Liens any Lien on any Property (or, in the case of a line of credit secured by inventory or accounts receivable, class of Property) existing on the date of this Agreement and set forth on Schedule 6.08Closing Date;
(b) any Lien on any asset securing all or any part of the purchase price of property or assets (including inventories) acquired or any portion of the cost of construction, development, alteration or improvement of any property, facility or asset or Indebtedness incurred or assumed solely for the purpose of financing all or any part of the cost of acquiring or constructing, developing, altering or improving such property, facility or asset, which Lien attached solely to such property, facility or asset during the period that such property, facility or asset was being constructed, developed, altered or improved or concurrently with or within 120 days after the acquisition, construction, development, alteration or improvement thereof;
(c) Liens for of a Subsidiary existing prior to the time such Subsidiary became a Subsidiary of the Company which (i) do not secure Indebtedness exceeding the aggregate principal amount of Indebtedness subject to such Lien prior to the time such Subsidiary became a Subsidiary of the Company, (ii) do not attach to any Property other than the Property attached pursuant to such Lien prior to the time such Subsidiary became a Subsidiary of the Company, and (iii) were not created in contemplation of such Subsidiary becoming a Subsidiary of the Company;
(d) any Lien on any Property existing thereon at the time of the acquisition of such Property and not created in connection with or in contemplation of such acquisition;
(e) any Lien on any Property (or, in the case of a line of credit secured by inventory or accounts receivable, class of Property) securing an extension, renewal, refunding or replacement of Indebtedness or a line of credit secured by a Lien referred to in clause (a), (b), (c) or (d) above; provided that such new Lien is limited to the Property (or, in the case of a line of credit secured by inventory or accounts receivable, class of Property) which was subject to the prior Lien immediately before such extension, renewal, refunding or replacement, and provided that the principal amount of Indebtedness or the amount of the line of credit secured by the prior Lien is not increased immediately before or in contemplation of or in connection with such extension, renewal, refunding or replacement;
(f) any Lien securing taxes, assessments or similar and other governmental charges, incurred in the ordinary course payment of business that are which is not yet due and payable or that are the payment of which is being contested in good faith and with due diligence by appropriate proceedings promptly initiated and with respect to diligently conducted and for which adequate such reserves with respect thereto are maintained on or other appropriate provision, if any, as shall be required by IFRS or, in the books case of Material Subsidiaries organized under laws of any other jurisdiction, the applicable Person in accordance with GAAPGAAP therein, shall have been made;
(cg) pledges Liens incurred or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or insurance and other types of social security programs, or for other similar purposes, other than any Lien imposed by ERISAsecurity;
(dh) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, warehousemen, carriers repairmen or other the like liens, securing obligations incurred arising in the ordinary course of business that: (1) are for sums not overdue for a period yet due or the payment of more than thirty (30) days; or (2) are which is being contested diligently in good faith pursuant to by appropriate proceedings promptly initiated and with respect to diligently conducted and for which adequate such reserves with respect thereto are maintained on or other appropriate provision, if any, as shall be required by IFRS or, in the books case of Material Subsidiaries organized under the laws of any other jurisdiction, the applicable PersonGAAP therein, shall have been made;
(ei) good faith pledges any Lien created by attachment or deposits judgment, 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 have been discharged within 60 days after the expiration of any such stay;
(j) any Lien created in connection with Permitted Hedging Transactions on Cash and Cash Equivalent Investments or on the commodity underlying such Permitted Hedging Transaction, to the extent such Permitted Hedging Transaction contemplates the purchase or sale of such commodity; provided that the market value of such assets subject to the Lien shall not exceed, in the aggregate, US$50,000,000 at any time outstanding;
(k) Liens to secure working capital borrowings not exceeding in the performance aggregate the greater of bids, trade contracts and leases (i) US$100,000,000 (or the equivalent in other currencies) or (ii) (A) 15% of the Consolidated Net Worth of the Company less (B) the amount of any Guaranty Obligations incurred by the Company or any of its Consolidated Subsidiaries for the account of parties other than Debt)the Company and its Consolidated Subsidiaries; and
(l) Liens in connection with bank overdraft protection, statutory obligations, surety and appeal bonds, performance bonds and other obligations lines of a like nature (other than Debt) credit or similar arrangements incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Loan Agreement (Gruma Sab De Cv), Loan Agreement (Gruma Sab De Cv)
Negative Pledge. No Loan Party nor The Borrower shall not, and shall not permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itit (or any income therefrom or any right to receive income therefrom), except:
(a) Liens existing on created pursuant to the date of this Agreement and set forth on Schedule 6.08Collateral Documents;
(b) Liens for taxes, assessments any Lien on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Restricted Subsidiary existing on the books of the applicable Person Second Amendment and Restatement Date and set forth in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this SectionSchedule 7.02; provided that (i) such Debt is Lien shall not secured by apply to any additional assets, other property or asset of the Borrower or any Restricted Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, Second Amendment and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b)Restatement Date;
(gc) any Lien imposed as existing on any asset prior to the acquisition thereof by the Borrower or a result Restricted Subsidiary; provided that such Lien was not created in contemplation of a taking under the exercise such event and does not extend to any other property of the power of eminent domain by Borrower or any governmental body or by any Person acting under governmental authorityRestricted Subsidiary;
(hd) minor survey exceptions any Lien existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary or minor encumbrances, easements merges into the Borrower or reservations, or rights any of others for rights-of-way, utilities its Restricted Subsidiaries in connection with an Acquisition; provided that such Lien was not created in contemplation of such event and does not extend to any other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct property of the activities Borrower or any Restricted Subsidiary;
(e) Liens upon the assets of the Borrower and its Restricted Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided subject to Capital Lease Obligations to the Administrative Agent prior to extent incurred or assumed after the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary Closing Date in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under reliance on Section 6.22(e7.01(a)(iii); provided that (i) such Liens do only serve to secure the payment of Indebtedness arising under such Capital Lease Obligation, (ii) the Lien encumbering the asset giving rise to the Capital Lease Obligation does not at any time encumber any property other asset of the Borrower or any Restricted Subsidiary and (iii) the aggregate outstanding principal amount of all Indebtedness secured pursuant to this clause (e) and clause (f) after the Closing Date shall not exceed the greater of $100,000,000 and 2.50% of Consolidated Total Assets determined as of the date of the most recent creation of a Lien in reliance on this clause (e);
(f) any Lien on any asset securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring or constructing such asset; provided that (i) such Lien attaches to such asset concurrently with or within 180 days after the acquisition or completion of construction thereof and attaches to no asset other than the property such asset so financed by such Debt and (ii) the Debt aggregate outstanding principal amount of all Indebtedness secured thereby does pursuant to clause (e) and this clause (f) after the Closing Date shall not exceed the cost or fair market value, whichever is lower, greater of the property being acquired on $100,000,000 and 2.50% of Consolidated Total Assets determined as of the date of acquisitionthe most recent creation of a Lien in reliance on this clause (f);
(g) Liens securing Indebtedness of the Borrower or a Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that such Liens, if they are on Collateral, are subordinated to the Liens securing the Obligations on terms satisfactory to the Administrative Agent;
(h) any Lien arising out of any Permitted Refinancing; provided that the principal amount of such Indebtedness is not increased and such refinanced Indebtedness is not secured by any additional assets;
(i) Permitted Encumbrances;
(j) other Liens securing Indebtedness or other obligations in an aggregate amount not exceeding $25,000,000 at any time outstanding; provided that any Indebtedness or other obligations secured by such other Liens on the Collateral (i) shall not exceed $5,000,000 at any time outstanding and (ii) shall either (A) be secured on a junior priority basis to the Liens on the Collateral securing the Secured Obligations or (B) cause the Borrowing Base to be reduced by the amount of the obligations secured by such Liens on the Collateral;
(k) so long as the same is subject to the Term Loan Intercreditor Agreement in the capacity of Fixed Asset Obligations, Liens on Collateral securing Indebtedness incurred pursuant to Section 7.01(a)(xiv);
(l) [Reserved];
(m) so long as the Borrower’s Senior Secured Leverage Ratio shall be equal to or less than 3.50:1.00 on a Pro Forma Basis (including the incurrence of any Indebtedness under Section 7.01(a)(xvii) then being incurred))
(i) Liens securing judgments placed upon the Equity Interests of any Restricted Subsidiary to secure Indebtedness incurred pursuant to Section 7.01(a)(xvii) in connection with the acquisition of such Restricted Subsidiary and (ii) Liens placed upon the assets of such Restricted Subsidiary or any of its Subsidiaries to secure Indebtedness (or to secure a Guarantee of such Indebtedness), in either case incurred pursuant to Section 7.01(a)(xvii) in connection with the acquisition of such Restricted Subsidiary; provided that such Liens shall be subject to the Term Loan Intercreditor Agreement in the capacity of, or on terms substantially the same as are applicable to, Fixed Asset Obligations;
(n) the modification, replacement, extension or renewal of any Lien permitted by (b), (d), (e), (f) and (m) of this Section 7.02 upon or in the same assets theretofore subject to such Lien (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and proceeds and products thereof) or the Permitted Refinancing thereof or other obligations secured thereby as and to the extent permitted by Section 7.01;
(o) Liens deemed to exist by reason of (x) any encumbrance or restriction (including put and call arrangements) with respect to the Equity Interests of any joint venture or similar arrangement pursuant to any joint venture or similar agreement (including any Minority-Owned Affiliates) or (y) any encumbrance or restriction imposed under any contract for the payment sale by the Borrower or any of money (its Subsidiaries of the Equity Interests of any Subsidiary, or appeal any business unit or other surety bonds relating division of the business or any Subsidiary permitted under this Agreement; provided that in each case such Liens shall extend only to such judgments) not constituting an Event of Default under Section 8.01(j)the relevant Equity Interests; and
(mp) so long as the same is subject to the Term Loan Intercreditor Agreement in the capacity of Fixed Asset Obligations, other Liens affecting property with an aggregate fair value on Collateral securing Indebtedness permitted to be incurred under Section 7.01(xi); provided that (i) on a Pro Forma Basis after giving effect to such incurrence, the Senior Secured Leverage Ratio would be equal to or less than 3.50:1.00 (provided that any proceeds of such debt incurrence and any other substantially simultaneous debt incurrence shall not to exceed $5,000,000be netted from Consolidated Senior Secured Indebtedness for purposes of calculating the Senior Secured Leverage Ratio).
Appears in 2 contracts
Sources: Abl Credit Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of payments set forth in Section 2.22 of this Agreement and set forth on Schedule 6.08Agreement;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens of mechanics, materialmen, warehousemen, carriers upon or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; any fixed or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured Lien secures Indebtedness permitted by any additional assetsSection 7.1(c), (ii) such Lien attaches to such asset concurrently or within 180 days after the amount secured acquisition, improvement or benefited thereby is not increased except as contemplated by Section 6.22(b), completion of the construction thereof; (iii) such Lien does not extend to any other asset of the direct Borrower or any contingent obligor with respect thereto is not changed, Subsidiary; and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market value, whichever is lower, of the property being acquired on the date of acquisitionimproving such fixed or capital assets;
(le) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (d) of this Section 7.2; provided, that the principal amount of the Indebtedness secured thereby plus any applicable premium or penalty, accrued interest and related fees and expenses is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(f) Liens securing judgments arising out of a conditional sale, title retention, consignment or similar arrangement for the payment sale of money goods or operating leases;
(g) Bankers liens, rights of set-off and similar rights of any depository institution or appeal escrow agent in possession of funds of the Borrower or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j)the Subsidiaries; and
(mh) other Liens affecting property with an aggregate fair value not Operating leases and licenses, including those related to exceed $5,000,000intellectual property.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Negative Pledge. No The Borrower will not, and will not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by it, exceptfor the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by:
(a) Liens existing on (i) Requirements of Law, (ii) any Loan Document, (iii) [reserved], (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(v), 6.01(a)(viii) or 6.01(a)(xxvii) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided that with respect to Indebtedness (A) referred to in clauses (iv) and (v) above, such restrictions shall be no more restrictive in any material respect than the date restrictions and conditions in the Loan Documents or, in the case of this Agreement Junior Financing, are market terms at the time of issuance and set forth on Schedule 6.08(B) referred to clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
(b) Liens for taxescustomary restrictions and conditions existing on the Effective Date and any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, service agreements, licenses, sublicenses, covenants not to s▇▇ and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any other Restricted Subsidiary;
(g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by a Restricted Subsidiary that is not a Loan Party to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries;
(h) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable (or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained other restrictions on the books of the applicable Person in accordance with GAAP;
(c) pledges cash or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(bconstituting Permitted Encumbrances);
(gi) restrictions set forth on Schedule 6.07 and any Lien imposed as a result extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of a taking under the exercise of the power of eminent domain by any governmental body such restriction or by any Person acting under governmental authoritycondition;
(hj) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities customary provisions in joint venture agreements and other similar purposesagreements applicable to joint ventures permitted by Section 6.02 and applicable solely to such joint venture; and
(k) customary net worth provisions contained in real property leases entered into by Subsidiaries, or zoning or other restrictions so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the use of real properties, which are necessary for the conduct of the activities ability of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair to meet their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000ongoing obligations.
Appears in 2 contracts
Sources: Credit Agreement (Vacasa, Inc.), Revolving Credit Agreement (Vacasa, Inc.)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will createCreate, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on securing the date of this Agreement and set forth on Schedule 6.08Obligations pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or assets of the Borrower or its Subsidiaries existing on the Effective Date set forth on Schedule 7.2; provided, that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) any Liens of the type described in Section 7.2(y) set forth on Schedule 7.2 shall be deemed to be, and shall be, for taxesinformational purposes only, assessments and such Liens shall not be permitted under this Agreement by having been set forth on Schedule 7.2;
(d) 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 secured Indebtedness permitted by Section 7.1(a)(iii); (ii) such Lien attaches to such asset concurrently or within ninety (90) days after the acquisition, improvement or completion of the construction 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;
(e) extensions, renewals, or replacements of any Lien referred to in clauses (a) through (d) of this Section 7.2; provided, that (i) the Indebtedness secured thereby constitutes a Permitted Refinancing and (ii) any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(f) 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 became or becomes a Subsidiary after the Effective Date prior to the time such Person became or becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of such acquisition or such Person becoming a Subsidiary as the case may be, (ii) such Lien shall not apply to any other property or asset of the Borrower or any Loan Party (other than any replacements of such property or assets and additions and accessions thereto, after-acquired property subject 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, and the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender), (iii) such Lien shall secure only those obligations and unused commitments (and to the extent such obligations and commitments constitute Indebtedness, such Indebtedness is permitted hereunder) that 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 so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed or replaced (plus any accrued but unpaid interest (including any portion thereof which is payable in kind in accordance with the terms of such extended, renewed or replaced Indebtedness) and premium payable by the terms of such obligations thereon and fees and expenses associated therewith) and (iv) the Indebtedness secured by such Lien is incurred pursuant to and in accordance with the terms of Section 7.1(a)(ix);
(g) Liens (i) of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction covering only the items being collected upon, (ii) in favor of a banking or other financial institution arising as a matter of law or contract encumbering deposits or other funds maintained with a financial institution (including netting arrangements or the right of set off) and which are within the general parameters customary in the banking industry and (iii) encumbering reasonable customary initial deposits and margin deposits and similar chargesLiens attaching to commodity trading accounts or other brokerage accounts, in each case incurred in the ordinary course of business that are business, not yet due for speculative purposes and payable or that are being contested not in good faith and connection with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books incurrence of the applicable Person in accordance with GAAPIndebtedness for borrowed money;
(ch) pledges Liens representing (i) any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted by this Agreement, (ii) any Lien or restriction that the interest or title of such lessor, licensor, sublessor or sublicensor may be subject to, or (iii) the interest of a licensee, lessee, sublicensee or sublessee arising by virtue of being granted a license or lease permitted by this Agreement, in each case not interfering in any material respect with the ordinary conduct of the business of the Borrower and the Subsidiaries, taken as a whole;
(i) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods;
(j) the filing of UCC financing statements solely as a precautionary measure or required notice in connection with operating leases or consignment of goods;
(k) Liens not otherwise permitted by this Section 7.2 to the extent that the aggregate outstanding amount (or in the case of Indebtedness, the principal amount) of the obligations secured thereby at any time outstanding does not exceed $5,000,000;
(l) Liens granted by a Subsidiary that is not a Loan Party in favor of any Loan Party in respect of Indebtedness or other obligations owed by such Subsidiary to such Loan Party;
(m) Liens (i) attaching solely to cash advances and ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made in connection with Investments permitted under Section 7.4 or (ii) consisting of an agreement to dispose of any property in a disposition permitted hereunder;
(n) Liens on the cash collateral supporting the Outstanding Letters of Credit in an aggregate amount not to exceed one hundred three percent (103.0%) of the aggregate maximum amount available to be drawn of the Outstanding Letters of Credit on the Closing Date;
(o) 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;
(p) Liens encumbering deposits made to secure obligations arising from contractual or warranty requirements;
(q) Liens in favor of customs and revenue authorities to secure payment of workers’ compensation, to participate in any fund customs duties in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAthe importation of goods;
(dr) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred bailees in the ordinary course of business;
(fs) utility and similar deposits in the ordinary course of business;
(t) Liens disclosed as exceptions to coverage in title policies and endorsements with respect to any Lien arising out real property, in each case approved by the Administrative Agent;
(u) Liens that are contractual rights of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that set-off (i) such Debt is relating to the establishment of depository relations with banks or other financial institutions not secured by any additional assetsgiven in connection with the incurrence of Indebtedness for borrowed money, (ii) the amount secured relating to pooled deposit or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities sweep accounts of the Borrower and its Subsidiaries or which customarily exist on properties any Loan Party to permit satisfaction of corporations engaged in overdraft or similar activities and similarly situated and which do not in any event materially impair their use obligations incurred in the operation ordinary course of the business of the Borrower and its Subsidiaries or the other Loan Parties or (iii) relating to purchase orders and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred agreements entered into by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds ordinary course of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agentbusiness;
(kv) Liens on property or assets of the Borrower or its Subsidiaries that do not constitute Collateral; provided, that such Liens secure only Indebtedness permitted by Section 7.1(a)(vii);
(w) non-exclusive licenses and sublicenses granted by Borrower or any of its Subsidiaries and leases and subleases by Borrower or any Subsidiary to third parties in the ordinary course of business not interfering with the business of the Borrower or any of its Subsidiaries;
(x) Liens securing Debt Indebtedness permitted under by Section 6.22(e7.1(a)(xxiv); provided that (ix) such Liens do not at any time encumber any property other than of the property financed by such Debt Loan Parties that constitutes Collateral and (iiy) the Debt secured thereby does such Liens with respect to Foreign Subsidiaries do not exceed the cost or fair market value, whichever is lower, secure Indebtedness with an aggregate principal amount in excess of the property being acquired on the date of acquisition;
(l) 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(j)$5,000,000; and
(my) Liens securing Indebtedness or other obligations owing to T-Mobile International AG and its affiliated telecommunications/wireless equipment and service companies; provided that such Liens affecting property with do not secure Indebtedness and/or other obligations in an aggregate fair value amount in excess of $200,000. For purposes of determining compliance with this Section 7.2, except for Liens described in Section 7.2(y), (x) a Lien need not be incurred solely by reference to exceed $5,000,000one category of Liens described above but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Liens described above, the Borrower, in its sole discretion, may classify or may subsequently reclassify at any time such Lien (or any portion thereof) in any manner that complies with this covenant. Notwithstanding anything to the contrary herein, Liens of the type described in Section 7.2(y) shall be permitted only pursuant to Section 7.2(y) and not any other provision of this Agreement (including without limitation Section 7.2(c), even if such Liens are described on Schedule 7.2).
Appears in 2 contracts
Sources: Credit Agreement (Biotelemetry, Inc.), Credit Agreement (Biotelemetry, Inc.)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will create, assume Enter into or suffer to exist exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or conditioning the creation or assumption of any Lien on upon any asset now owned of its property or hereafter acquired by itassets (including, except:
without limitation, any of the Unencumbered Properties), except (ai) Liens existing on pursuant to the date of this Agreement and set forth on Schedule 6.08;
Loan Documents or (bii) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books any property or assets other than any of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund Unencumbered Properties in connection with workers’ compensation(A) any Surviving Debt and any Refinancing Debt extending, unemployment insurancerefunding or refinancing such Surviving Debt, old-age pensions so long as the prohibitions or other social security programs, or for other similar purposes, other conditions contained in such Refinancing Debt are no more restrictive than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred the corresponding provisions contained in the ordinary course of business that: Debt which is extended, refunded or refinanced thereby, (B) any Non-Recourse Debt permitted by Section 5.02(b)(ii)(E) solely to the extent that (1) are not overdue for a period of more than thirty (30) days; or the Person incurring such Non-Recourse Debt has no Subsidiaries and (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained the agreements or instruments governing such Non-Recourse Debt prohibit Liens on the books property of the applicable Person incurring such Non-Recourse Debt and the Equity Interests in such Person;
, (e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(fC) any Lien arising out of the refinancing, extension, renewal or refunding of any Secured Recourse Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g5.02(b)(ii)(F) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as solely to the use of real propertiesextent that the agreements or instruments governing such Secured Recourse Debt prohibit Liens on the property securing such Debt, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transactionmezzanine financing Liens on any underlying real estate relating thereto (other than any Unencumbered Property or interest therein), provided that (iD) such Liens encumber only the assets acquired with the proceeds of such Debt, and (iiany Capitalized Lease permitted by Section 5.02(b)(ii)(B) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory solely to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided extent that (i) such Liens do not at any time encumber any property other than Capitalized Lease prohibits a Lien on the property financed by such subject thereto, or (E) any Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired outstanding on the date any Subsidiary of acquisition;
the Borrower becomes such a Subsidiary (l) Liens securing judgments for so long as such agreement was not entered into solely in contemplation of such Subsidiary becoming a Subsidiary of the payment of money (or appeal or other surety bonds Borrower). A requirement in agreements relating to such judgmentsUnsecured Debt permitted by this Agreement for Borrower to maintain a level of unencumbered assets to Unsecured Debt shall not be a violation of this Section 5.02(l) not constituting an Event or the restriction against negative pledges in clause (c) of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000the definition of Unencumbered Property Conditions.
Appears in 2 contracts
Sources: Credit Agreement (American Campus Communities Operating Partnership LP), Credit Agreement (American Campus Communities Operating Partnership LP)
Negative Pledge. No Loan Party Neither the Borrower nor any Wholly Owned Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth identified on Schedule 6.085.7;
(b) Liens any Lien on any asset securing Indebtedness incurred or assumed for taxes, assessments the purpose of financing all or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books any part of the applicable Person in accordance with GAAPcost of acquiring or constructing such asset (so long as the asset so acquired or constructed constitutes a capital expenditure permitted hereunder);
(c) pledges or deposits made in Liens securing Indebtedness owing by any Subsidiary to the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISABorrower;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt Indebtedness secured by any Lien permitted by any of clauses (a) through (e) the foregoing paragraphs of this Section; , provided that (i) such Debt Indebtedness is not secured by any additional assets, and (ii) the amount of such Indebtedness secured or benefited thereby by any such Lien is not increased except as contemplated by Section 6.22(b)or, (iii) if increased, the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension excess of the obligations amount of the Indebtedness secured by any such lien over the amount of the Indebtedness so refinanced extended, renewed, or benefited thereby is permitted by Section 6.22(b)refunded shall be tendered to the Lender as a prepayment of the Loan;
(ge) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Liens incidental to the use of real properties, which are necessary for the conduct of its business or the activities ownership of the Borrower its assets which (i) do not secure Indebtedness and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which (ii) do not in any event the aggregate materially detract from the value of its assets or materially impair their the use thereof in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereofbusiness;
(if) Liens securing in favor of the Obligations Lenders created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Star Buffet Inc), Credit Agreement (Star Buffet Inc)
Negative Pledge. No Loan Party nor The Company will not, and will not permit any Subsidiary of a Loan Party will the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
(a) Liens existing on Liens, if any, created in favor of the date Collateral Agent for the benefit of this the Lenders and, to the extent the Intercreditor Agreement and set forth on Schedule 6.08has been entered into, for the benefit of the Private Placement Debt Holders, in each case pursuant to the Loan Documents;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Company or any such Restricted Subsidiary existing on the Effective Date set forth on Schedule 6.02; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Company or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAsuch Restricted Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Liens secure Indebtedness permitted by clause (f) of Section 6.01, carriers (ii) such Liens attach to such assets concurrently or other like lienswithin ninety (90) days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction thereof; (iii) such Liens do not extend to any other assets; and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets;
(e) good faith pledges any Lien (i) existing on any asset of any Person at the time such Person becomes such a Restricted Subsidiary of the Company, (ii) existing on any asset of any Person at the time such Person is merged with or deposits into the Company or any such Restricted Subsidiary of the Company or (iii) existing on any asset prior to secure the performance acquisition thereof by the Company or any such Restricted Subsidiary of bidsthe Company; provided, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred that any such Lien was not created in the ordinary course contemplation of businessany of the foregoing and any such Lien secures only those obligations which it secures on the date that such Person becomes such a Restricted Subsidiary or the date of such merger or the date of such acquisition;
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this SectionSection 6.02; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of replacement is limited to the obligations secured or benefited thereby is permitted by Section 6.22(b)assets originally encumbered thereby;
(g) any Lien imposed as a result Liens on the assets of a taking under the exercise Subsidiaries of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct Company in favor of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower Company or any Subsidiary in connection with any NMTC TransactionCanadian Borrower, provided that (i) such Liens encumber only as the assets acquired with the proceeds of such Debtcase may be, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt Indebtedness permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j6.01(c); and
(mh) other Liens affecting on the property with an or assets of the Company or such Restricted Subsidiary; provided, that (i) the principal amount of the Indebtedness secured by such Liens shall not exceed $25,000,000 in the aggregate fair value at any time outstanding and (ii) no such Liens shall apply to any Accounts or Inventory of the Company and the Restricted Subsidiaries. For purposes of this Section, the entry by the Company or any such Restricted Subsidiary into a true lease or true bailment arrangement which contains a provision purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ in the event that such arrangement is determined not to exceed $5,000,000constitute a true lease or true bailment and the filing of a precautionary UCC or PPSA financing statement in connection therewith shall not constitute the creation, incurrence, assumption or sufferance of a Lien unless, under applicable law, such arrangement is determined not to constitute a true lease or true bailment arrangement and a security interest or other interest in or lien on property or assets of the Company or any such Restricted Subsidiary has in fact been granted or deemed to have been granted. For greater certainty, any reference herein or in any other Loan Document to any Lien permitted to exist in respect of the property or assets of any Canadian Loan Party is not intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Lien created by any of the Collateral Documents to any such Lien permitted hereby or thereby.
Appears in 2 contracts
Sources: Credit Agreement (Watsco Inc), Credit Agreement (Watsco Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer or permit to exist any Lien (but excluding Liens, if any, evidenced by operating leases) on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
(a) Liens existing on securing the date of this Agreement Capital Lease Obligations, purchase money or other Indebtedness, and set forth on Schedule 6.08Permitted Real Estate Debt, in each case, permitted under Sections 7.1(c) and (d), respectively;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges or deposits made Liens on assets acquired after the date hereof if such Liens were in place at the ordinary course time of business to secure payment of workers’ compensationacquisition, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;the extent such acquisition is permitted pursuant to Section 7.4
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained set forth on the books of the applicable PersonSchedule 7.2;
(e) good faith pledges or deposits Liens with respect to secure the performance Investments consisting of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of businessfully collateralized repurchase agreements constituting Permitted Investments;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien Liens not otherwise permitted by any of clauses (a) through (e) of this Section; provided that Section 7.2 so long as neither (i) such Debt is not the aggregate principal amount of the obligations secured by any additional assets, thereby nor (ii) the amount secured or benefited thereby is not increased except aggregate fair market value (determined, in the case of each such Lien, as contemplated by Section 6.22(b), (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 date such Lien is permitted by Section 6.22(b)incurred) of the assets subject thereto exceeds (as to the Borrower and all Subsidiaries) $5,000,000 at any one time; provided that the Borrower shall discharge any such Lien within two (2) Business Days after a Responsible Officer becomes aware thereof;
(g) any Lien imposed as a result of a taking under Liens securing Indebtedness permitted pursuant to Section 7.1(b); provided that the exercise principal amount of the power of eminent domain by Indebtedness secured thereby is not increased and that any governmental body or by any Person acting under governmental authoritysuch Lien is limited to the assets originally encumbered thereby;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Liens granted to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided HEICO Aerospace Holdings Corp. securing loans to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;Parts Advantage; and
(i) Liens securing the Obligations created or arising under the granted by any non-wholly owned Subsidiary that is not a Subsidiary Loan Documents;
(j) Liens securing Debt incurred by Party of the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds to secure Indebtedness of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt Subsidiary permitted under by Section 6.22(e7.1(h); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Heico Corp), Revolving Credit Agreement (Heico Corp)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of payments set forth in Section 2.21 and Section 8.2(a) of this Agreement and set forth on Schedule 6.08Agreement;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Restricted Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISARestricted Subsidiary;
(d) purchase money Liens of mechanics, materialmen, warehousemen, carriers upon or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; any fixed or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured Lien secures Indebtedness permitted by any additional assetsSection 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the amount secured acquisition, improvement or benefited thereby is not increased except as contemplated by Section 6.22(b), completion of the construction thereof; (iii) the direct or such Lien does not extend to any contingent obligor with respect thereto is not changed, other asset; and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market valueimproving such fixed or capital assets;
(e) Liens on any asset existing at the time of acquisition of such asset by Borrower or a Restricted Subsidiary of Borrower, whichever is lower, or Liens to secure the payment of all or any part of the property being purchase price of an asset upon the acquisition of such asset by Borrower or a Restricted Subsidiary of Borrower or to secure any Indebtedness permitted hereby incurred by Borrower or a Restricted Subsidiary of Borrower at the time of or with ninety days after the acquisition of such asset, which Indebtedness is incurred for the purpose of financing all or any part of the purchase price thereof; provided, however, that the Lien shall apply only to the asset so acquired and proceeds thereof; and provided further, that all such Liens do not in the aggregate secure Indebtedness in excess of $15,000,000 at any time;
(f) Liens on assets of a Person that becomes a direct or indirect Restricted Subsidiary of Borrower after the date of acquisitionthis Agreement, provided, however, that such Liens exist at the time such Person becomes a Restricted Subsidiary of Borrower and are not created in anticipation thereof and, in any event, do not in the aggregate secure Indebtedness in excess of $10,000,000 at any time;
(lg) Liens securing judgments for on the payment Capital Stock and/or assets of money (Real Estate Subsidiaries in connection with Indebtedness permitted hereunder so long as, provided that such Liens attach only to the real property financed by such Indebtedness and or appeal or other surety bonds relating the Capital Stock and/or assets related to such judgmentsreal property of such Real Estate Subsidiaries, as the case may be;
(h) other Liens securing Indebtedness permitted hereunder in an amount not constituting an Event of Default under Section 8.01(j)to exceed $20,000,000 in the aggregate at any time outstanding; and
(mi) other Liens affecting property with an aggregate fair value extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (d) of this Section 7.2; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to exceed $5,000,000the assets originally encumbered thereby.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Newmarket Corp), Revolving Credit Agreement (Newmarket Corp)
Negative Pledge. No Loan Party nor The Borrower will not, and the Borrower will not permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement granted by the Borrower or any Restricted Subsidiary and set forth securing Indebtedness or other obligations outstanding on Schedule 6.08the date of this Agreement;
(b) Liens for taxes, assessments any Lien on any asset of any Person existing at the time such Person is merged or similar charges, incurred consolidated with or into the Borrower or any Restricted Subsidiary and not created in the ordinary course contemplation of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPsuch event;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed existing on any asset prior to the acquisition thereof by ERISAthe Borrower or any Restricted Subsidiary and not created in contemplation of such acquisition;
(d) Liens any Lien on any asset securing Indebtedness incurred or assumed for the purpose of mechanics, materialmen, warehousemen, carriers financing all or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books any part of the applicable Personcost of acquiring such asset; provided that such Lien attaches to such asset concurrently with or within 365 days after the acquisition thereof;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt Indebtedness or other obligations secured by any Lien otherwise permitted by any of the foregoing clauses (a) through (e) of this SectionSection 5.07; provided that (i) the principal amount of such Debt Indebtedness or the amount of such other obligation, as applicable, is not increased and is not secured by any additional assets;
(f) Liens for taxes, (ii) the amount secured assessments or benefited thereby is other governmental charges or levies not increased except as contemplated yet due or which are being contested in good faith by Section 6.22(b), (iii) the direct or any contingent obligor appropriate proceedings and with respect thereto is not changed, and (iv) any renewal to which adequate reserves or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b)other appropriate provisions are being maintained in accordance with GAAP;
(g) any Lien statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed as a result by law, created in the ordinary course of a taking under the exercise business and for amounts not past due for more than 60 days or which are being contested in good faith by appropriate proceedings that are sufficient to prevent imminent foreclosure of the power of eminent domain by any governmental body such Liens, are promptly instituted and diligently conducted and with respect to which adequate reserves or by any Person acting under governmental authorityother appropriate provisions are being maintained in accordance with GAAP;
(h) minor survey exceptions Liens incurred or minor encumbrancesdeposits made in the ordinary course of business (including, without limitation, surety bonds and appeal bonds) in connection with workers compensation, unemployment insurance and other types of social security benefits or to secure the performance of tenders, bids, leases, contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations or arising as a result of progress payments under government contracts;
(i) easements or reservations(including, or rights of others for without limitation, reciprocal easement agreements and utility agreements), rights-of-way, utilities covenants, consents, reservations, encroachments, variations and other similar purposesrestrictions, charges or zoning encumbrances (whether or other restrictions as to not recorded) affecting the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsproperty;
(j) Liens with respect to judgments and attachments that do not result in an Event of Default;
(k) Liens, deposits or pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), leases (permitted under the terms of this Agreement), public or statutory obligations, surety, stay, appeal, indemnity, performance or other obligations arising in the ordinary course of business;
(l) other Liens, including Liens imposed by Environmental Laws, arising in the ordinary course of business of the Borrower or such Restricted Subsidiary that (i) do not secure Indebtedness, (ii) do not secure obligations in an aggregate amount exceeding $100,000,000 at any time at which Investment Grade Status does not exist as to the Borrower, and (iii) do not in the aggregate materially detract from the value of the assets of the Borrower or such Restricted Subsidiary or materially impair the use thereof in the operation of its business;
(m) Liens required pursuant to the terms of this Agreement;
(n) Liens on Permitted Cash Collateral securing Debt incurred only Cash Collateralized Term Loans;
(o) Liens on and pledges of the Equity Securities of any joint venture owned by the Borrower or any Restricted Subsidiary in connection with (other than any NMTC Transaction, provided such joint venture that (iis a Consolidated Subsidiary) such Liens encumber only to the assets acquired with the proceeds extent securing Indebtedness of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory joint venture that is non-recourse to the Administrative AgentBorrower or any Restricted Subsidiary;
(kp) bankers’ Liens, rights of setoff and other similar Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at existing solely with respect to cash and cash equivalents on deposit in one or more accounts maintained by the Borrower or any time encumber any property other than Restricted Subsidiary, in each case granted in the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, ordinary course of business in favor of the property being acquired on the date of acquisitionbank 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;
(lq) Liens securing judgments incurred in the ordinary course of business to secure liability for premiums to insurance carriers or to maintain self-insurance;
(r) Liens in favor of the Borrower or any of its wholly-owned Restricted Subsidiaries;
(s) rights of first refusal entered into in the ordinary course of business;
(t) any letter of credit issued for the payment account of money (the Borrower or appeal or other surety bonds relating any of its Affiliates to such judgments) not constituting an Event of Default secure Indebtedness under Section 8.01(j)tax free financings; and
(mu) other Liens affecting property with not otherwise permitted by the foregoing clauses of this Section 5.07 securing obligations in an aggregate fair value principal or face amount at any date not to exceed $5,000,00015% of Consolidated Net Tangible Assets; provided, for the purposes of this Section 5.07(u), with respect to any such secured Indebtedness of a non-wholly owned Subsidiary of the Borrower with no recourse to the Borrower or any wholly-owned Subsidiary thereof, only that portion of such Indebtedness reflecting the Borrower’s pro rata ownership interest therein shall be included in calculating compliance herewith.
Appears in 2 contracts
Sources: Credit Agreement (Spectra Energy Partners, LP), Credit Agreement (Spectra Energy Partners, LP)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any of its Subsidiary of a Loan Party will Guarantors to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
(a) Liens existing 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 date priority of this Agreement and payments set forth on Schedule 6.08in Section 2.19 and Section 8.2;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or other like lienswithin 90 days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction 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;
(e) good faith pledges rights of set off, rights over a margin call account, any form of cash collateral or deposits to secure the performance of bidssimilar arrangement, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other in any case for obligations of a like nature (other than Debt) incurred in respect of any Hedging Transactions so long as such Liens do not encumber assets securing the ordinary course of businessObligations;
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this SectionSection 7.2; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of replacement is limited to the obligations secured or benefited thereby is permitted by Section 6.22(b)assets originally encumbered thereby;
(g) any Lien imposed as a result Liens created pursuant to or in respect of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;Permitted Senior Investment Participation; and
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Liens created pursuant to the use New Treasury Credit Agreement or any replacement facility so long as the collateral consists solely of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use Cash Collateral (as defined in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(eNew Treasury Credit Agreement); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Revolving Credit Agreement (NGP Capital Resources Co), Revolving Credit Agreement (NGP Capital Resources Co)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Encumbrances;
(b) any Liens for taxes, assessments on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Subsidiary existing on the books Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of the applicable Person in accordance with GAAPBorrower or any Subsidiary;
(c) pledges purchase money Liens upon or deposits made in the ordinary course of business any fixed or capital assets to secure payment the purchase price or the cost of workers’ compensationconstruction 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(c), (ii) such Lien attaches to participate in such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend to any fund in connection with workers’ compensationother asset; and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, unemployment insurance, old-age pensions constructing or other social security programs, improving such fixed or for other similar purposes, other than any Lien imposed by ERISAcapital assets;
(d) Liens of mechanicsLiens, materialmenif any, warehousemen, carriers upon or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; any fixed or (2) are being contested diligently in good faith pursuant capital assets to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Personsecure any Synthetic Lease permitted under Section 7.1(g);
(e) good faith pledges extensions, renewals, or deposits replacements of any Lien referred to secure in paragraphs (a) through (d) of this Section; provided, that the performance principal amount of bidsthe Indebtedness secured thereby is not increased and that any such extension, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in renewal or replacement is limited to the ordinary course of businessassets originally encumbered thereby;
(f) any Lien arising out of against the refinancing, extension, renewal Borrower or refunding any Restricted Subsidiary evidencing the transfer of any Debt secured by receivables and related property to any Lien permitted by Permitted Securitization Subsidiary pursuant to any of clauses (a) through (e) of this SectionPermitted Securitization Transaction; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);and
(g) any Lien imposed as against a result of a taking under the exercise of the power of eminent domain by Permitted Securitization Subsidiary pursuant to any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Permitted Securitization Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Harland John H Co), Credit Agreement (Harland John H Co)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of their respective assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on created in favor of the date Administrative Agent for the benefit of this Agreement and set forth on Schedule 6.08the Lenders pursuant to the Loan Documents;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges or deposits made a Lien securing a Hedging Agreement in the ordinary course favor of business to secure payment of workers’ compensationa current Lender, to participate in any fund entered into in connection with workers’ compensationinterest rate risks with respect to this Agreement, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAwhich ranks pari passu with the Security Documents;
(d) any Liens on any property or asset of mechanics, materialmen, warehousemen, carriers the Borrower or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Subsidiary existing on the books Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of the applicable PersonBorrower or any Subsidiary;
(e) good faith pledges purchase money Liens upon or deposits in any fixed or capital assets to secure the performance purchase price or the cost of bidssuch fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, trade contracts and leases that (other than Debti) such Lien secures Indebtedness permitted by Section 7.1(f), statutory obligations, surety (ii) such Lien attaches to such asset concurrently or within 90 days after the acquisition thereof; (iii) such Lien does not extend to any other asset; and appeal bonds, performance bonds and other obligations (iv) the Indebtedness secured thereby does not exceed the cost of a like nature (other than Debt) incurred in the ordinary course of businessacquiring such fixed or capital assets;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) existing on any asset of any Person at the time such Debt is not secured by any additional assetsPerson becomes a Subsidiary of the Borrower, (ii) existing on any asset of any Person at the amount secured time such Person is merged with or benefited thereby is not increased except as contemplated by Section 6.22(b), into the Borrower or any Subsidiary of the Borrower or (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown existing on any title insurance commitment or survey provided to the Administrative Agent asset prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred acquisition thereof by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(l) 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(j); and
(mg) other Liens affecting property with an aggregate fair value extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (f) of this Section; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to exceed $5,000,000the assets originally encumbered thereby.
Appears in 2 contracts
Sources: Revolving Credit Loan Agreement (American Healthways Inc), Revolving Credit and Term Loan Agreement (American Healthways Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
(a) Liens existing on created in favor of the date Administrative Agent for the benefit of this Agreement and set forth on Schedule 6.08the Lenders pursuant to the Loan Documents;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made asset of the Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) with respect to the Lien in favor of Bankers Softech, such Lien secures or relates only to an operating lease for which the ordinary course of business aggregate amount to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAbe paid thereunder does not exceed $350,000;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or other like lienswithin 90 days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction 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;
(e) good faith pledges any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or deposits into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to secure the performance acquisition thereof by the Borrower or any Subsidiary of bidsthe Borrower; provided, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred that any such Lien was not created in the ordinary course contemplation of business;any of the foregoing and 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; and
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this Section; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (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 replacement is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as limited to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000originally encumbered thereby.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Negative Pledge. No Loan Party nor Such Borrower will not pledge or otherwise subject to any Subsidiary lien any property or assets of a Loan Party such Borrower unless the Loans and the Obligations of such Borrower under this Agreement are secured by such lien equally and ratably with all other obligations secured thereby so long as such other obligations shall be so secured; provided, however, that such covenant will create, assume or suffer not apply to exist any Lien on any asset now owned or hereafter acquired by it, exceptliens securing obligations which do not in the aggregate at anyone time outstanding exceed 20% of Net Tangible Assets (as defined below) of such Borrower and it Consolidated Subsidiaries and also will not apply to:
(a) Liens existing on the date pledge of this Agreement any assets of such Borrower to secure any financing by such Borrower of the exporting of goods to or between, or the marketing thereof in, jurisdictions other than the United States and set forth on Schedule 6.08Puerto Rico in connection with which such Borrower reserves the right, in accordance with customary and established banking practice, to deposit, or otherwise subject to a lien, cash, securities or receivables, for the purpose of securing banking accommodations or as the basis for the issuance of bankers' acceptances or in aid of other similar borrowing arrangements;
(b) Liens for taxes, assessments or similar charges, incurred the pledge of receivables of such Borrower payable in currencies other than United States dollars to secure borrowings in jurisdictions other than the ordinary course of business that are not yet due United States and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPuerto Rico;
(c) pledges or deposits made any deposit of assets of such Borrower in the ordinary course favor of business any governmental bodies to secure payment of workers’ compensationprogress, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions advance or other social security programs, payments under a contract or for other similar purposes, other than any Lien imposed by ERISAstatute;
(d) Liens any lien or charge on any property of mechanicssuch Borrower, materialmentangible or intangible, warehousemenreal or personal, carriers existing at the time of acquisition or other like liens, securing obligations incurred in construction of such property (including acquisition through merger or consolidation) or given to secure the ordinary course payment of business that: (1) are not overdue for a period of more than thirty (30) days; all or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books any part of the applicable Personpurchase or construction price thereof or to secure any indebtedness incurred prior to, at the time of, or within one year after, the acquisition or completion of construction thereof for the purpose of financing all or any part of the purchase or construction price thereof;
(e) good faith pledges bankers' liens or deposits to secure rights of offset;
(f) any lien securing the performance of bidsany contract or undertaking not directly or indirectly in connection with the borrowing of money, trade contracts obtaining of advances or credit or the securing of debt, if made and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred continuing in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body lien to secure nonrecourse obligations in connection with such Borrower's engaging in leveraged or by any Person acting under governmental authoritysingle-investor lease transactions;
(h) minor survey exceptions any lien to secure payment obligations with respect to (x) rate swap transactions, swap options, basis swaps, forward rate transactions, commodity swaps, commodity options, equity or minor encumbrancesequity index swaps, easements equity or reservationsequity index options, bond options, interest rate options, foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, credit protection transactions, credit swaps, credit default swaps, credit default options, total return swaps, credit spread transactions, repurchase transactions, reverse repurchase transactions, buy/sell-back transactions, securities lending transactions, weather index transactions, or rights forward purchases or sales of others for rights-of-waya security, utilities and commodity or other similar purposesfinancial instrument or interest (including any option with respect to any of these transactions), or zoning or other restrictions as to the use of real properties, which (y) transactions that are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;those described above; and
(i) Liens securing any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any lien, charge or pledge referred to in the Obligations created or arising under foregoing clauses (a) to (h), inclusive, of this Section 6.5; provided, however, that the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or amount of any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt all obligations and (ii) the Debt indebtedness secured thereby does shall not exceed the cost amount thereof so secured immediately prior to the time of such extension, renewal or fair market valuereplacement and that such extension, whichever is lower, renewal or replacement shall be limited to all or a part of the property being acquired which secured the charge or lien so extended, renewed or replaced (plus improvements on the date of acquisition;
(l) 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(jproperty); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Toyota Motor Credit Corp), 364 Day Credit Agreement (Toyota Motor Credit Corp)
Negative Pledge. No Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that prohibits any Restricted Subsidiary (other than an Excluded Subsidiary) (i) that is not a Loan Party, to pay dividends or distributions to (directly or indirectly), or to make or repay loans or advances to, any Loan Party nor any Subsidiary of a Loan Party will or (ii) to create, incur, assume or suffer to exist any Lien Liens on any asset now owned or hereafter acquired by it, exceptproperty of such Person (other than Excluded Assets) for the benefit of the Lenders to secure the Obligations under the Loan Documents (other than Incremental Facilities that are not intended to be secured on a first lien basis); provided that the foregoing shall not apply to Contractual Obligations that:
(a) Liens existing (i) exist on the date of this Agreement Closing Date, including Contractual Obligations governing Indebtedness incurred on the Closing Date to finance the Transactions and set forth any Permitted Refinancing thereof or other Contractual Obligations executed on Schedule 6.08the Closing Date in connection with the Transactions;
(b) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary or are binding on a newly formed Restricted Subsidiary that purchases or acquires (in one transaction or a series of transactions) all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of another Person, so long as, in each case, such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary (or such acquisition) or are binding with respect to any asset at the time such asset was acquired;
(c) are Contractual Obligations of a Restricted Subsidiary that is not a Loan Party or to the extent applicable only to Excluded Assets;
(d) are customary restrictions that arise in connection with (A) any Lien permitted by Section 7.01 and relate to the property subject to such Lien or (B) any Disposition permitted by Section 7.05 applicable pending such Disposition solely to the assets (including Equity Interests) subject to such Disposition;
(e) are joint venture agreements and other similar agreements applicable to Joint Ventures and applicable solely to such Joint Venture;
(f) are negative pledges and restrictions on Liens for taxesin favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by or the subject of or that secures such Indebtedness and the proceeds and products thereof;
(g) are restrictions in leases, assessments subleases, licenses, sublicenses or similar chargesagreements governing a disposition of assets, incurred trading, netting, operating, construction, service, supply, purchase, sale or other agreements entered into in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect so long as such restrictions relate to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPassets subject thereto;
(ch) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien comprise restrictions imposed by ERISAany agreement relating to secured Indebtedness permitted pursuant to Section 7.03 to the extent that such restrictions apply only to the property or assets securing such Indebtedness;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1i) are not overdue for customary provisions restricting subletting or assignment of any lease governing a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Personleasehold interest;
(ej) good faith pledges or deposits to secure the performance are customary provisions restricting assignment of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred any agreement entered into in the ordinary course of business;
(fk) are restrictions on cash or other deposits imposed by customers or trade counterparties under contracts entered into in the ordinary course of business;
(l) arise in connection with cash or other deposits permitted under Section 7.01;
(m) comprise restrictions that are, taken as a whole, in the good faith judgment of the Borrower (i) no more restrictive with respect to the Borrower or any Restricted Subsidiary than customary market terms for Indebtedness of such type, (ii) no more restrictive than the restrictions contained in this Agreement, or not reasonably anticipated to materially and adversely affect the Loan Parties’ ability to make any payments required hereunder;
(n) apply by reason of any applicable Law, rule, regulation or order or are required by any Governmental Authority having jurisdiction over the Borrower or any Restricted Subsidiary;
(o) customary restrictions contained in Indebtedness permitted to be incurred pursuant to Section 7.03(g), (h), (i), (j), (l), (m), (x) or (y);
(p) Contractual Obligations that are subject to the applicable override provisions of the UCC;
(q) customary provisions (including provisions limiting the Disposition, distribution or encumbrance of assets or property) included in sale leaseback agreements or other similar agreements;
(r) net worth provisions contained in agreements entered into by the Borrower or any Restricted Subsidiary, so long as the Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower or such Restricted Subsidiary to meet its ongoing obligations;
(s) restrictions arising in any agreement relating to (i) any Lien arising out Cash Management Obligation to the extent such restrictions relate solely to the cash, bank accounts or other assets or activities subject to the applicable Cash Management Services, (ii) any treasury arrangements and (iii) any Hedge Agreement;
(t) restrictions on the granting of a security interest in Intellectual Property contained in licenses, sublicenses or cross-licenses by the Borrower or any Restricted Subsidiary of such Intellectual Property, which licenses, sublicenses and cross-licenses were entered into in the ordinary course of business; and
(u) other restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the refinancingcontracts, extension, renewal instruments or refunding of any Debt secured by any Lien permitted by any of obligations referred to in the preceding clauses (a) through (e) of this Section; provided that (i) no such Debt is not secured by any additional assetsamendment, (ii) modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)good faith determination of the Borrower, (iii) the direct or any contingent obligor materially more restrictive with respect thereto is not changedto such encumbrances and other restrictions, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed taken as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbranceswhole, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged than those in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent effect prior to the date hereof and not objected relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. Notwithstanding the foregoing, in no event shall any Loan Party or any Restricted Subsidiary enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that prohibits any Restricted Subsidiary to by create, incur, assume or suffer to exist Liens on any Material Intellectual Property related to any Specified Product for the Administrative Agent prior benefit of the Lenders to the date hereof;
(i) Liens securing secure the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than any prohibitions included in any licenses or sublicenses of any Specified Product in the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, ordinary course of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000business.
Appears in 2 contracts
Sources: Credit Agreement (Ironwood Pharmaceuticals Inc), Credit Agreement (Ironwood Pharmaceuticals Inc)
Negative Pledge. No Loan Party nor Enter into any Subsidiary agreement, instrument, deed or lease that prohibits or limits the ability of a Loan Party will any Borrower to create, incur, assume or suffer to exist any Lien on upon any asset of its properties or revenues, whether now owned or hereafter acquired by itacquired, exceptfor the benefit of the Secured Parties with respect to the Obligations or under the Loan Documents; provided that the foregoing shall not apply to:
(a) Liens existing on the date of this Agreement restrictions and set forth on Schedule 6.08conditions imposed by (i) Law or (ii) any Loan Document;
(b) Liens for taxescustomary restrictions and conditions existing on the Closing Date or to any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, incurred except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) [reserved];
(g) [reserved];
(h) restrictions on cash or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable (or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPother restrictions constituting Liens permitted hereunder);
(ci) pledges restrictions set forth on Schedule 7.11 and any extension, renewal, amendment, modification or deposits made in replacement thereof, except to the ordinary course extent any such amendment, modification or replacement expands the scope of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions such restriction or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAcondition;
(dj) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred customary provisions in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds joint venture agreements and other obligations of a like nature (other than Debt) incurred similar agreements applicable to joint ventures permitted by Section 7.02 and applicable solely to such joint venture and entered into in the ordinary course of business;
(fk) any Lien arising out of the refinancing, extension, renewal or refunding negative pledges and restrictions on Liens in favor of any Debt secured by any Lien permitted by any holder of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt Indebtedness permitted under Section 6.22(e7.03(f) or 7.03(g); provided that (i) such Liens do not at , but solely to the extent any time encumber any property other than negative pledge relates to the property financed by or the subject of such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisitionIndebtedness;
(l) Liens securing judgments for [reserved];
(m) customary net worth provisions contained in real property leases entered into by a Borrower, so long as such Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the payment ability of money (or appeal or other surety bonds relating the Borrowers to such judgments) not constituting an Event of Default under Section 8.01(j)meet their ongoing obligations; and
(mn) other Liens affecting provisions restricting the granting of a security interest in intellectual property with an aggregate fair value not contained in licenses or sublicenses by Holdings and its Restricted Subsidiaries of such intellectual property, which licenses and sublicenses were entered into in the ordinary course of business (in which case such restriction shall relate only to exceed $5,000,000such intellectual property).
Appears in 2 contracts
Sources: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)
Negative Pledge. No Loan Party nor (a) So long as any Subsidiary of a Loan Party will the Notes or Coupons remain outstanding (as defined in the Agency Agreement) the Issuer shall not create, incur, guarantee or assume after the date hereof any notes, bonds, debentures or suffer to exist other similar evidences of indebtedness for money borrowed (“Relevant Debt”) secured by any Lien mortgage, pledge, security interest, lien or other similar encumbrance (a “Security Interest”) on any asset now owned Principal Property (as defined below) or hereafter acquired by iton any shares of stock or indebtedness of any Restricted Subsidiary (as defined below) (which for the avoidance of doubt shall not include shares in the Issuer), exceptwithout effectively providing concurrently with the creation, incurrence, guarantee or assumption of such Relevant Debt that the Notes will be secured equally and rateably with (or prior to) the Relevant Debt, so long as the Relevant Debt will be so secured. This restriction will not apply to:
(ai) Liens Security Interests on property, shares of stock or indebtedness of any corporation existing at the time it becomes a subsidiary of the Issuer provided that any such Security Interest was not created in contemplation of becoming a subsidiary;
(ii) Security Interests on property or shares of stock existing at the time of the acquisition thereof by the Issuer or to secure the payment of all or any part of the purchase price thereof or all or part of the cost of the improvement, construction, alteration or repair of any building, equipment or facilities or of any other improvements on all or any part of the property or to secure any Relevant Debt incurred prior to, at the time of, or within 12 months after, in the case of shares of stock, the acquisition of such shares and, in the case of property, the later of the acquisition, the completion of construction (including any improvements, alterations or repairs on an existing property) or the commencement of commercial operation of such property, which Relevant Debt is incurred for the purpose of financing all or any part of the purchase price thereof or all or part of the cost of improvement, construction, alteration or repair thereon;
(iii) Security Interests on any Principal Property or on shares of stock or indebtedness of any subsidiary of the Issuer, to secure all or any part of the cost of exploration, drilling, development, improvement, construction, alteration or repair of any part of the Principal Property or to secure any Relevant Debt incurred to finance or refinance all or any part of such cost;
(iv) Security Interests existing on the issue date of this Agreement and set forth on Schedule 6.08the Notes;
(bv) Liens for taxesSecurity Interests on property owned or held by any company or on shares of stock or indebtedness of any entity, assessments in either case existing at the time such company is merged into or similar chargesconsolidated or amalgamated with either the Issuer or any of its subsidiaries, or at the time of a sale, lease or other disposition of the properties of a company as an entirety or substantially as an entirety to the Issuer or any of its subsidiaries;
(vi) Security Interests arising by operation of law (other than by reason of default);
(vii) Security Interests to secure Relevant Debt incurred in the ordinary course of business and maturing not more than 12 months from the date incurred;
(viii) Security Interests arising pursuant to the specific terms of any licence, joint operating agreement, unitisation agreement or other similar document evidencing the interest of the Issuer or a subsidiary of the Issuer in any oil or gas field and/or facilities (including pipelines), provided that are not yet due and payable or that are being contested any such Security Interest is limited to such interest;
(ix) Security Interests to secure indebtedness for borrowed money incurred in good faith and connection with due diligence by appropriate proceedings and with respect a specifically identifiable project where the Security Interest relates to a Principal Property to which adequate reserves with respect thereto are maintained on such project has been undertaken and the books recourse of the applicable Person creditors in respect of such Security Interest is substantially limited to such project and Principal Property;
(x) Security Interests created in accordance with GAAP;normal practice to secure Relevant Debt of the Issuer whose main purpose is the raising of finances under any options, futures, swaps, short sale contracts or similar or related instruments which relate to the purchase or sale of securities, commodities or currencies; and
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(fxi) any Lien arising out of the refinancing, extension, renewal or refunding replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Debt secured by any Lien permitted by any of clauses Security Interests referred to in (ai) through (ex) of this Sectionparagraph, or of any Relevant Debt secured thereby; provided that (i) such Debt is not secured by any additional assets, (ii) the principal amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Relevant Debt secured thereby does shall not exceed the cost principal amount of Relevant Debt so secured at the time of such extension, renewal or fair market valuereplacement, whichever is lowerand that such extension, renewal or replacement Security Interest shall be limited to all or any part of the same property being acquired or shares of stock that secured the Security Interest extended, renewed or replaced (plus improvements on the date such property), or property received or shares of acquisition;
(l) Liens securing judgments for the payment of money (stock issued in substitution or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000exchange therefor.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Negative Pledge. No Loan Party nor The Borrowers will not, and will not permit any Subsidiary of a Loan Party will their Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of their assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on securing the date of this Agreement and set forth on Schedule 6.08Obligations;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Liens;
(c) pledges any Liens on any property or deposits made in asset of a Borrower or any Subsidiary existing on the ordinary course Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in such Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens of mechanics, materialmen, warehousemen, carriers upon or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; any fixed or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured Lien secures Indebtedness permitted by any additional assetsSection 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the amount secured acquisition, improvement or benefited thereby is not increased except as contemplated by Section 6.22(b), completion of the construction thereof; (iii) the direct or such Lien does not extend to any contingent obligor with respect thereto is not changed, other asset; and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market valueimproving such fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of a Borrowers, whichever (ii) existing on any asset of any Person at the time such Person is lowermerged with or into a Borrower or any Subsidiary of a Borrower or (iii) existing on any asset prior to the acquisition thereof by a Borrower or any Subsidiary of a Borrower; provided, that any such Lien was not created in the contemplation of any of the property being acquired foregoing and 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;
(l) 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(j); and
(mf) other Liens affecting property with an aggregate fair value extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (d) of this Section 7.2; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to exceed $5,000,000the assets originally encumbered thereby.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Delek US Holdings, Inc.), Revolving Credit Agreement (Delek US Holdings, Inc.)
Negative Pledge. No Loan Party nor Holdings will not, and will not permit any Subsidiary of a Loan Party will its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired (other than any shares of stock of Holdings that are repurchased by itthe Borrower and retired or held by Holdings), except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Encumbrances;
(b) any Liens for taxes, assessments on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Restricted Subsidiary existing on the books Effective Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of the applicable Person in accordance with GAAPBorrower or any Restricted Subsidiary;
(c) pledges purchase money Liens upon or deposits made in the ordinary course of business any fixed or capital assets to secure payment the purchase price or the cost of workers’ compensationconstruction 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(c), (ii) such Lien attaches to participate in such asset concurrently or within ninety (90) days after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend to any fund other asset and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets together with all interest, fees and costs incurred in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAtherewith;
(d) any Lien (i) existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any Restricted Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and any such Lien secures only those obligations which it secures on the date that such Person becomes a Restricted Subsidiary or the date of such merger or the date of such acquisition;
(e) extensions, renewals, or replacements of any Lien referred to in Sections 7.2(a) through 7.2(d); provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(f) Liens securing the Obligations;
(g) Liens on shares of mechanics, materialmen, warehousemen, carriers stock of any Foreign Subsidiary that is a Restricted Subsidiary to the extent that the Obligations are secured pari passu with any other Indebtedness or other like liens, obligations secured thereby;
(h) Liens securing Indebtedness permitted by Section 7.1(j); and
(i) Liens securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than DebtIndebtedness) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is an aggregate principal amount not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not exceed at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on No Obligor shall (and the date Company shall ensure that no Material Subsidiary will) create or permit to subsist any Lien over any of this Agreement and set forth on Schedule 6.08;its assets.
(b) Liens No Obligor shall (and the Company shall ensure that no Material Subsidiary will) (i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired or acquired by an Obligor or any other member of the Group or any of its related entities, or (ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms, except for taxes, assessments the discounting of bills or similar charges, incurred notes in the ordinary course of business that trading, in each case in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset. The arrangements and transactions referred to in this paragraph (b) are not yet due "Sale and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on Leaseback Type Transactions" for the books purposes of the applicable Person in accordance with GAAP;this First Supplemental Indenture.
(c) pledges Paragraphs (a) and (b) above do not apply to any Lien or deposits made Sale and Leaseback Type Transactions:
(i) existing on the Issue Date or, in the case of a Subsidiary which becomes a Material Subsidiary after the date of this Indenture, existing as at the date that that Subsidiary becomes a Material Subsidiary; provided that, in each case, the principal amount secured thereby is not subsequently increased;
(ii) created over or in respect of an asset to secure Financial Indebtedness incurred to finance the acquisition of that asset provided that the Financial Indebtedness so secured does not exceed 100% of the total acquisition costs of that asset and the Lien or Sale and Leaseback Type Transaction is limited to that asset;
(iii) existing on or in respect of the assets of an entity at the time it becomes a Material Subsidiary after the Issue Date, but only if (A) the Lien was not created in contemplation of the company becoming a Material Subsidiary and (B) the principal amount secured by the Lien is not increased after it becomes a Material Subsidiary;
(iv) existing on or in respect of assets at the time they are acquired by a Material Subsidiary, but only if (A) the Lien was existing at the time of the acquisition, (B) the Lien was not created in contemplation of the acquisition and (C) the principal amount secured by the Lien is not increased after the acquisition;
(v) securing or in respect of any Financial Indebtedness incurred by any Subsidiaries pursuant to Section 4.10;
(vi) created over any U.S. industrial revenue and/or similar type of bond or other security;
(vii) on capital stock, debt securities or other securities of a Person that is not a PGS Subsidiary;
(viii) any lien arising by operation of law and in the ordinary course of business trading and not as a result of any default or omission by any member of the Group;
(ix) relating to secure payment accounts receivable of workers’ compensationthe Company or any of the PGS Subsidiaries that have been sold, assigned or otherwise transferred to participate in any fund a person other than the Company or a PGS Subsidiary in connection with workers’ compensationFinancial Indebtedness of the type described in paragraph (d) of the definition of "Financial Indebtedness", unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any provided that the amount secured by that Lien imposed does not exceed 10% of the consolidated total assets of the Group (calculated by ERISAreference to the then latest audited consolidated financial statements of the Group);
(dx) Liens of mechanics, materialmen, warehousemen, carriers securing the Working Capital Facility or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable PersonBonding Facility;
(exi) good faith pledges created pursuant to applications or deposits reimbursement agreements pertaining to secure the performance commercial letters of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred credit obtained in the ordinary course of business;
(fxii) any Lien retention of title arising out in a supplier's standard conditions of supply in respect of goods acquired by a Material Subsidiary in the ordinary course of business;
(xiii) any right of set-off on credit balances of a Material Subsidiary where the same arises in the ordinary course of banking arrangements for the purpose of netting debit and credit balances; or
(xiv) created on or in respect of the refinancing, extension, renewal assets the subject of a Lien or refunding Sale and Leaseback Type Transactions permitted under paragraphs (i) to (xiii) above to secure any refinancing of any Debt the amount thereby secured provided that the principal amount secured by any such Lien permitted by any or Sale and Leaseback Type Transaction may not be increased and the maturity of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the each amount secured or benefited thereby is may not increased except as contemplated by Section 6.22(b), (iii) be extended beyond 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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others maturity date provided for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary original documentation in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating relation to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000refinanced amount.
Appears in 2 contracts
Sources: First Supplemental Indenture (Petroleum Geo Services Asa), First Supplemental Indenture (Petroleum Geo Services Asa)
Negative Pledge. No Loan Party nor any Subsidiary The Borrower shall not, without first complying with the requirements of a Loan Party will Section 9.1, directly or indirectly create, incur, assume or suffer permit to exist any Lien lien, mortgage, pledge, security interest, charge or encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any other agreement to give any security interest) on or with respect to any asset now owned or hereafter acquired by itof the Excepted Property (other than the Excepted Property described in paragraph P of the definition of Excepted Property, exceptwhich property shall not be subject to this Section 6.9) except for:
(a) Liens existing on Permitted Exceptions (other than the date Permitted Exception described in paragraph Y of this Agreement and set forth on Schedule 6.08the definition of Permitted Exceptions in the Indenture);
(b) Liens for taxesas to the Excepted Property described in paragraphs B through E, assessments or similar chargesinclusive, incurred and paragraph K of the definition of Excepted Property in the ordinary course of business Indenture, liens, mortgages, pledges, security interests, charges and encumbrances in connection with purchase money, construction or acquisition indebtedness (or renewals or extensions thereof) that are not yet due encumber only the asset or assets so purchased, constructed or acquired or property improved through such purchase, construction or acquisition, and payable the proceeds upon a sale, transfer or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPexchange thereof;
(c) pledges liens, mortgages, pledges, security interests, charges and encumbrances (i) for the benefit of all Holders of the Obligations issued under the Indenture, (ii) in connection with any bond or deposits made similar fund established by the Borrower with respect to any debt securities, the interest on which is excludable from gross income of the holder thereof pursuant to the Internal Revenue Code, as amended, to the extent of amounts deposited in such funds in the ordinary course of business to secure payment of workers’ compensationmake regularly scheduled payments on such debt securities, to participate in any fund or (iii) in connection with workers’ compensationany debt service or similar fund established by the Borrower for the payment of principal or interest on debt securities, unemployment insurancethe interest on which is excludable from gross income of the holder thereof pursuant to the Internal Revenue Code, old-age pensions as amended, if such fund is funded solely from the proceeds of the issuance of such debt securities (or funded in connection with the refinancing of other social security programs, or for other similar purposes, other than any Lien imposed debt by ERISAsuch debt securities);
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings pledges, security interests, charges and encumbrances with respect to which adequate reserves with respect thereto are maintained on the books any interest, debt or equity, of the applicable PersonBorrower in the National Rural Utilities Cooperative Finance Corporation or CoBank, ACB purchased or otherwise acquired by the Borrower in connection with membership in any such entity or any borrowing from any such entity;
(e) good faith pledges liens, pledges, security interests, charges and encumbrances arising in connection with any legal or deposits to secure economic defeasance of indebtedness, unless the performance funding of bids, trade contracts the defeasance is during an Increased Oversight Period or a Highest Oversight Period and leases more than twenty percent (20%) of the defeasance is funded other than Debtwith the proceeds of the issuance of new indebtedness (in which case the Borrower shall first comply with the requirements of Section 9.1 before permitting or creating any such lien, pledge, security interest, charge or encumbrance), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) liens, pledges, security interests, charges and encumbrances with respect to deposit, brokerage, commodity and other similar accounts to the extent such liens, pledges, security interests, charges and encumbrances do not secure indebtedness for borrowed money other than indebtedness incurred in connection with acquiring securities or other investments deposited in any Lien arising out of the refinancingsuch account; or
(g) liens, extensionpledges, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that security interests, charges and encumbrances on (i) such Debt is not secured by any additional assetscash, (ii) securities or deposits issued, guaranteed or fully insured as to payment by the amount secured Government or benefited thereby is not increased except as contemplated by Section 6.22(b)any agency thereof, (iii) Investments of the direct type permitted under Section 6.5 hereof or any contingent obligor with respect thereto is not changed, and (iv) other current assets (to the extent pledged to secure current liabilities), to the extent required to be provided by the Borrower as collateral for any renewal or extension obligation of the obligations secured Borrower under (A) any agreement or benefited thereby is permitted other instrument relating to any rate, index or price swap, basis swap, forward rate, index or price transaction, commodity swap, commodity option, cap, collar or floor transaction, or other similar transaction entered into by Section 6.22(bthe Borrower for the purpose of directly mitigating risks associated with interest expense, fuel or other commodity expense, (B) any power purchase or sale obligation, (C) any agreement or arrangement entered into, with or through, the RTO, (D) any other similar obligation, commitment or liability of the Borrower, or (E) any letter of credit issued on behalf of the Borrower, in each case of subclauses (A) through (E);
, arising in connection with the Borrower’s business and properties and not entered into for the purpose of speculation; provided, however, that at any time the amount of such cash, securities, deposits and Investments subject to any lien, pledge, security interest, charge or encumbrance under this clause (g) any Lien imposed as a result of a taking under in the exercise aggregate may not exceed ten percent (10%) of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Borrower’s Total Utility Plant.
Appears in 2 contracts
Sources: Loan Contract (Oglethorpe Power Corp), Loan Contract (Oglethorpe Power Corp)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Domestic Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of payments set forth in Section 2.22 or Section 8.2 of this Agreement and set forth on Schedule 6.08Agreement;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or other like lienswithin 90 days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction 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;
(e) good faith pledges or deposits Liens securing Indebtedness permitted pursuant to secure the performance of bidsSection 7.1(g); provided, trade contracts and leases (that such Lien does not extend to any other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;assets; and
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this SectionSection 7.2; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (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 replacement is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as limited to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000originally encumbered thereby.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (JTH Holding, Inc.), Revolving Credit Agreement (JTH Holding, Inc.)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will createCreate, assume permit to exist, or suffer to exist the creation of, any Lien Lien, on any asset now owned of its properties or hereafter acquired by itassets (real or personal, tangible or intangible), except:
(a) Liens in favor of the Bank;
(b) Liens existing on the date of this Agreement and set forth hereof that are listed on Schedule 6.08Annex I hereto;
(bc) Liens for taxes, assessments or governmental charges or levies to the extent not required to be paid by Section 7.05 hereof;
(d) Liens imposed by law, such as materialmen's, mechanics', carrier's, workmen's, and repairmen's Liens and other similar charges, incurred Liens arising in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) which are not overdue for a period of more than thirty (30) 30 days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure obligations under workmen's compensation laws or similar legislation or to secure public or statutory obligations of the Borrower or any of its Subsidiaries;
(f) Liens with respect to any OEM Equipment Finance Transaction but only in respect of the equipment acquired therein;
(g) Liens incurred, assumed or created in connection with Facilities Management Arrangements, but only as to equipment and machinery that (i) is pertinent to the performance by the Borrower or the relevant Subsidiary of bids, trade contracts its obligations thereunder and (ii) was not an asset of the Borrower or such relevant Subsidiary prior to such arrangement;
(h) Liens for finance leases of equipment leased by the Borrower or any of its Subsidiaries (other than Debtincluding Capitalized Leases), statutory obligations, surety and appeal bonds, performance bonds and other obligations or purchase money Liens upon or in equipment acquired or held by the Borrower or any of a like nature (other than Debt) incurred its Subsidiaries in the ordinary course of business;
(f) business to secure the purchase price of such equipment or to secure Indebtedness incurred solely for the purpose of financing the acquisition of any Lien arising out such equipment to be subject to such Liens, or Liens existing on any such equipment at the time of the refinancingleasing, acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any equipment (including, but not limited to, the Financed Equipment) other than the equipment being leased or acquired and no such extension, renewal or refunding replacement shall extend to or cover any equipment not theretofore subject to the Lien being extended, renewed or replaced, and provided, further, that (i) the aggregate principal amount of the Indebtedness at any Debt one time outstanding secured by Liens permitted pursuant to this clause (h) shall not exceed $5,000,000 at any one time outstanding and (ii) any such Indebtedness shall not otherwise be prohibited by the terms of this Agreement; or
(i) the replacement, extension or renewal of any Lien permitted by any of clauses (a) through (eh) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase of principal amount) of this Section; provided that (i) such Debt is not the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000thereby.
Appears in 2 contracts
Sources: Equipment Facility and Revolving Credit Agreement (Vestcom International Inc), Equipment Facility and Revolving Credit Agreement (Vestcom International Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries (other than Excluded Subsidiaries) to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
except (ai) Liens existing on the date of this Agreement and set forth listed on Schedule 6.08;
7.2; (bii) Liens for taxesof landlords, assessments contractors, laborers or supplymen, tax Liens, or Liens securing performance or appeal bonds, or other similar Liens or charges arising out of the Borrower’s business, provided that tax Liens are removed before related Taxes become delinquent and other liens are promptly removed, in either case unless contested in good faith and by appropriate proceedings, and as to which adequate reserves have been established and no foreclosure, sale or similar charges, incurred proceedings have commenced; (iii) Liens in favor of the Administrative Agent for the benefit of the Lenders; (iv) Liens on the assets of any Subsidiary arising in the ordinary course of the business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business such Subsidiary, including Liens to secure payment Indebtedness to any Federal Home Loan Bank; (v) Liens on assets of workers’ compensation, to participate in any fund Subsidiaries in connection with workers’ compensationthe acquisition of property by way of purchase money mortgage, unemployment insurance, old-age pensions conditional sale or other social security programstitle retention agreement, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers capitalized lease or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changeddeferred payment contract, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as attaching only to the use of real propertiesproperty being acquired, which are necessary for if the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed 100% of the cost or fair market value, whichever is lower, value of such property at the time of acquisition thereof; and (vi) Liens on assets of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property Borrower with an aggregate fair a value not to exceed in excess of $5,000,0001,000,000.
Appears in 1 contract
Sources: Revolving Credit Agreement (Boston Private Financial Holdings Inc)
Negative Pledge. No Loan Party TCPL shall not, nor shall it permit the Borrower or any Subsidiary of a Loan Party will its Designated Subsidiaries to, create, incur, assume or suffer to exist any Lien on Security Interest upon or with respect to any asset now owned of its assets or hereafter acquired by it, exceptproperties to secure any obligation unless at the same time all of the indebtedness and liabilities of the Loan Parties to the Agent and the Lenders hereunder are secured equally and ratably with such obligations; provided that this Section 8.1(k) shall not apply to or operate to prevent:
(ai) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made Security Interests given in the ordinary course of business to any bank or banks to secure payment any Indebtedness payable on demand or maturing twenty-four (24) months or less after the date such Indebtedness is incurred (but taking into account and including any right of workers’ compensationextension or renewal which may be exercised as of right by TCPL, the Borrower or such Designated Subsidiary, but disregarding any renewal or extension thereof provided at the option of the holder of such Indebtedness);
(ii) Purchase Money Mortgages;
(iii) Security Interests over cash or marketable securities pledged to secure hedging and other derivative obligations;
(iv) the giving of security for Indebtedness to TCPL or a Designated Subsidiary;
(v) liens for taxes and assessments not at the time overdue and liens securing workmen’s compensation assessments;
(vi) liens for specified taxes and assessments which are overdue but the validity of which is being contested at the time by TCPL or the Borrower or such Designated Subsidiary in good faith;
(vii) liens or rights of distress reserved in or exercisable under any lease for rent and for compliance with the terms of such lease;
(viii) any obligations or duties affecting the property of TCPL or the Borrower or such Designated Subsidiary, to participate any Governmental Authority with respect to any franchise, grant, license or permit and any defects in any fund title to structures or other facilities arising solely from the fact that such structures or facilities are constructed or installed on lands held by TCPL or the Borrower or such Designated Subsidiary under government permits, leases or other grants, which obligations, duties and defects in the aggregate do not materially impair the use of such property, structures or facilities for the purposes for which they are held by TCPL or the Borrower or such Designated Subsidiary;
(ix) deposits in connection with workers’ contracts, bids, tenders or expropriation proceedings, or to secure workmen’s compensation, unemployment insurance, old-age pensions surety or other social security programsappeal bonds, costs of litigation when required by law, public and statutory obligations, liens or for claims incidental to current construction, mechanics’, materialmen’s, warehousemen’s, carriers’ and other similar purposes, other than any Lien imposed by ERISAliens;
(dx) Liens of mechanics, materialmen, warehousemen, carriers security given to a public utility or any municipality or other like liensGovernmental Authority when required by such utility or other authority in connection with the operations of TCPL, securing obligations incurred in the ordinary course Borrower or such Designated Subsidiary;
(xi) liens and privileges arising out of business that: (1) are not overdue judgments or awards with respect to which TCPL, the Borrower or such Designated Subsidiary shall be prosecuting an appeal or proceedings for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings review and with respect to which adequate reserves with respect thereto are maintained on the books it shall have secured a stay of the applicable Personexecution pending such appeal or proceedings for review;
(exii) good faith pledges liens on deposits with a bank or deposits banks securing loans made by such bank or banks to secure an Affiliate of the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of businessBorrower;
(fxiii) any Lien arising out other liens of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses a nature similar to those referred to in paragraphs (av) through (exi) inclusive of this Section; provided that (iSection 8.1(k) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event the opinion of TCPL or the Borrower materially impair their the use in of the property subject thereto or the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment TCPL or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any such Designated Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only or the assets acquired with the proceeds value of such Debt, and (ii) property for the purpose of such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;business; or
(kxiv) Liens securing Debt any Security Interest on assets or property of TCPL, the Borrower or such Designated Subsidiary which are not otherwise permitted under Section 6.22(e); provided that by this subsection if, after giving effect to such Security Interest, the aggregate principal amount of Indebtedness secured by such Security Interests permitted only by this clause (ixiv) such Liens do does not at any time encumber any property other than exceed in the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, aggregate 5% of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Consolidated Net Tangible Assets.
Appears in 1 contract
Negative Pledge. No The Parent Borrower will not, and will not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by itacquired, exceptfor the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by:
(a) Liens existing on (i) Requirements of Law, (ii) any Loan Document, (iii) any documentation governing a Permitted Receivables Financing, (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(v), 6.01(a)(viii) or 6.01(a)(xxviii) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided, that with respect to Indebtedness (A) referred to in clauses (iv) and (v) above, such restrictions shall be no more restrictive in any material respect than the date restrictions and conditions in the Loan Documents or, in the case of this Agreement Junior Financing, are market terms at the time of issuance and set forth on Schedule 6.08(B) clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
(b) Liens for taxescustomary restrictions and conditions existing on the Effective Date and any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, service agreements, licenses, sublicenses, covenants not to ▇▇▇ and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Parent Borrower or any Restricted Subsidiary;
(g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries;
(h) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries on cash or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereofdeposits constituting Permitted Encumbrances);
(i) Liens securing restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except to the Obligations created extent any such amendment, modification or arising under replacement expands the Loan Documentsscope of any such restriction or condition;
(j) Liens securing Debt incurred customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) Section 6.04 and applicable solely to such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;joint venture; and
(k) Liens securing Debt permitted under Section 6.22(e); provided customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the Parent Borrower has determined in good faith that (i) such Liens do net worth provisions could not at any time encumber any property other than reasonably be expected to impair the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, ability of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating Parent Borrower and its Subsidiaries to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000meet their ongoing obligations.
Appears in 1 contract
Negative Pledge. No Loan Party Neither the Company nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itany of them, except:
(a) Liens any Lien existing on the date of this Agreement and disclosed in the financial statements referred to in Section 7.04 or set forth on in Schedule 6.088.04, and any extension, renewal or replacement of any such Lien so long as the principal amount secured thereby is not increased and the scope of the property subject to such Lien is not extended;
(b) Liens imposed by law for taxes, assessments or similar chargescharges of any Governmental Authority for claims not yet due, incurred or to the extent that such Lien is being contested in good faith by appropriate proceedings and adequate reserves in accordance with GAAP are being maintained therefor, provided that no notice of Lien has been filed or recorded under the Code;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law or created in the ordinary course of business that which are not yet due and delinquent or remain payable without penalty or that which are being contested in good faith and with due diligence by appropriate proceedings, which proceedings and with respect to which adequate reserves with respect thereto are maintained on have the books effect of preventing the forfeiture or sale of the applicable Person in accordance with GAAPproperty subject thereto;
(cd) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, Liens (other than any Lien imposed by ERISA;
(d) Liens consisting of mechanics, materialmen, warehousemen, carriers pledges or other like liens, securing obligations incurred deposits required in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings connection with workers' compensation, unemployment insurance and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Personother social security legislation;
(e) good faith pledges Liens on property of the Company or deposits to secure any Subsidiary securing (i) the non-delinquent performance of bids, trade contracts and leases (other than Debtfor borrowed money), leases or statutory obligations, (ii) surety and bonds (excluding appeal bonds, performance bonds and other bonds posted in connection with court proceedings or judgments) and (iii) other non- delinquent obligations of a like nature (other than Debt) in each case incurred in the ordinary course of business;
(f) Liens consisting of judgment or judicial attachment liens and Liens securing contingent obligations on appeal bonds and other bonds posted in connection with court proceedings or judgments, provided that (i) in the case of judgment and judicial attachment liens, the enforcement of such Liens is effectively stayed, and (ii) all such Liens in the aggregate at any Lien arising out time outstanding for the Company and its Subsidiaries do not exceed US$10,000,000;
(g) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, individually or in the aggregate, do not materially detract from the value of the refinancingproperty subject thereto or materially interfere with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(h) Liens securing obligations in respect of capital leases on assets subject to such leases, extension, renewal or refunding provided that such capital leases are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any Debt secured by any Lien permitted by any statutory or common law provision relating to banker's liens, rights of clauses (a) through (e) of this Sectionset-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such Debt deposit account is not secured a dedicated cash collateral account and is not subject to restrictions against access by any additional assets, the Company or the applicable Subsidiary in excess of those set forth by regulations promulgated by the FRB and (ii) the amount secured or benefited thereby such deposit account is not increased except as contemplated intended by Section 6.22(b), (iii) the direct Company 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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Subsidiary to provide collateral to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsdepository institution;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary arising in connection with any NMTC Transaction, Securitization Transactions; provided that the aggregate investment or claim held at any time by all purchasers, assignees or other transferees of (ior of interests in) such Liens encumber only receivables and other rights to payment in all Securitization Transactions shall not at any time exceed in the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;aggregate US$150,000,000; and
(k) in addition to Liens permitted by subsections (a) through (j) above, other Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do in a Dollar Equivalent amount not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, exceeding 12.5% of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Consolidated Shareholders' Equity.
Appears in 1 contract
Negative Pledge. No Loan Party nor The Company will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on Liens upon or with respect to any asset now owned or hereafter acquired by itit (including, except:without limitation, the Collateral (as defined in the Security Agreement)) or on any of its rights in respect thereof, except for the following (collectively, the “Permitted Liens”):
(a) Liens existing on granted pursuant to the date of this Agreement and set forth on Schedule 6.08Security Agreement;
(b) Liens for taxesexisting as of the Closing Date (as defined in the Purchase Agreement), assessments which are set forth on Schedule A hereto;
(c) Liens incidental to the ordinary conduct of the business of the Company and its Subsidiaries or similar chargesthe ownership of their respective assets which do not secure Indebtedness, incurred such as carrier’s, warehousemen’s, materialmen’s, landlord’s and mechanic’s liens, and which do not in the aggregate materially detract from the value of their respective assets or materially impair the use thereof in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPbusiness;
(cd) pledges Liens incurred or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions insurance or other social security programsforms of governmental insurance or benefits, or for to secure performance of tenders, statutory obligations, bids, leases or other similar purposes, obligations (other than any Lien imposed by ERISA;
(dfor Indebtedness) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred entered into in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, obligations on surety and appeal bonds, bonds or performance bonds and other obligations of a like nature (other than Debt) incurred entered into in the ordinary course of business;
(e) judgment Liens which do not otherwise result in an Event of Default under Section 6(a)(viii) hereof;
(f) Liens securing Indebtedness permitted pursuant to Subsections 5.1(b), 5.1(d) or 5.1(h) hereof; provided that with respect to Liens securing Indebtedness permitted pursuant to Subsections 5.1(d) or 5.1(h) hereof, such Liens do not extend to any Lien property other than the property being acquired or constructed or to the property being improved (but only to the extent of such improvement);
(g) Liens for Taxes, assessments or governmental charges or levies, or otherwise arising out by operation of the refinancinglaw, extensionwhich Taxes, renewal assessments or refunding governmental charges or levies are not yet due and payable or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP;
(h) Liens arising solely by virtue of any Debt secured statutory provisions 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 depositary institution;
(i) Liens permitted under Subsection 5.8 hereof; and
(j) other Liens in respect of assets now owned or hereafter acquired by any Lien permitted by the Company or any of its Subsidiaries not described in clauses (a) through (ei) of this Sectionabove; provided that (i) each such Debt Lien and the obligation that it secures is not expressly and fully subordinated to all Liens granted pursuant to the Security Agreement and the obligations of the Company under this Note and the other Note Documents by documents that contain subordination terms that are reasonably satisfactory to Holder and; provided, further, that the aggregate principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
this clause (j) Liens securing Debt incurred does not, at any one time, exceed the sum of (A) $5,000,000, plus (B) the aggregate amount of any principal payments made by the Borrower or Company on this Note (excluding the amount of any Subsidiary Interest capitalized as principal pursuant to Section 1(b)(i) hereof that is subsequently repaid in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(ecash); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 1 contract
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will create, assume Enter into or suffer to exist exist, or permit any of its Subsidiaries (x) that directly or indirectly own (including pursuant to a Qualifying Ground Lease) any Unencumbered Assets or lease any Unencumbered Assets pursuant to an Operating Lease to enter into or suffer to exist, any Negative Pledge upon any of its property or assets (including, without limitation, any Unencumbered Assets), except pursuant to the Loan Documents and the Summit OP Facility (2023) or (y) that do not directly or indirectly own any Unencumbered Assets to enter into or suffer to exist, any Negative Pledge upon any of its property or assets except (i) in connection with any Existing Debt, (ii) pursuant to the Loan Documents and under the Summit JV MR1 Facility, the Summit OP Facility (2023) and the Summit SubJV Facility or (iii) in connection with (A) any Non-Recourse Debt or Permitted Recourse Debt, provided that the terms of such Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, do not provide for or prohibit or condition the creation of any Lien on any asset now owned or hereafter acquired Unencumbered Assets and are otherwise permitted by it, except:
the Loan Documents (a) Liens existing on provided further that any restriction of the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred type described in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made proviso in the ordinary course definition of business “Negative Pledge” shall not be deemed to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in violate the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(bforegoing restriction), (iii) the direct or any contingent obligor with respect thereto is not changed, and (ivB) any renewal or extension of the obligations secured or benefited thereby is purchase money Indebtedness permitted by under Section 6.22(b);
(g5.02(b)(iii)(A) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as solely to the use of real properties, which are necessary for extent that the conduct of agreement or instrument governing such Indebtedness prohibits a Lien on the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets property acquired with the proceeds of such DebtIndebtedness, and (iiC) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory any Capitalized Lease permitted by Section 5.02(b)(iii)(B) solely to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided extent that (i) such Liens do not at any time encumber any property other than Capitalized Lease prohibits a Lien on the property financed by such Debt and subject thereto, or (iiD) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired any Indebtedness outstanding on the date any Subsidiary of acquisition;
the Borrower becomes such a Subsidiary (l) Liens securing judgments for so long as such agreement was not entered into solely in contemplation of such Subsidiary becoming a Subsidiary of the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(jBorrower); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 1 contract
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Encumbrances;
(b) any Liens for taxes, assessments on any property or similar charges, incurred in assets of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Subsidiary existing on the books Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of the applicable Person in accordance with GAAPBorrower or any Subsidiary;
(c) pledges purchase money Liens upon or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions fixed or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured Lien secures Indebtedness permitted by any additional assetsSection 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the amount secured acquisition, improvement or benefited thereby is not increased except as contemplated by Section 6.22(b), completion of the construction thereof; (iii) the direct or such Lien does not extend to any contingent obligor with respect thereto is not changed, other asset; and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market value, whichever is lower, improving such fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the property being acquired Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(le) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default Indebtedness permitted under Section 8.01(j)7.1;
(f) Liens or pledges of securities of the Borrower or any Subsidiary to governmental agencies pursuant to the Borrower's or any Subsidiary's insurance program;
(g) Rights reserved or vested in governmental authority which do not materially impair the use of such property;
(h) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (g) of this Section; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby; and
(mi) other Liens affecting property on improved commercial real properties in connection with an aggregate fair value not to exceed $5,000,000permanent financing thereof.
Appears in 1 contract
Sources: Revolving Credit Agreement (Patriot Transportation Holding Inc)
Negative Pledge. No Loan Party nor The Lessee will not, and will not permit any Subsidiary of a Loan Party will its Consolidated Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Encumbrances;
(b) any Liens for taxes, assessments on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Lessee or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Consolidated Subsidiary existing on the books Credit Agreement Funding Date and forth on Schedule 5.3.2; provided, that such Lien shall not apply to any other property or asset of the applicable Person in accordance with GAAPLessee or any Consolidated Subsidiary;
(c) pledges purchase money Liens upon or deposits made in the ordinary course of business any fixed or capital assets to secure payment the purchase price or the cost of workers’ compensationconstruction 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 attaches to participate in such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction thereof; (ii) such Lien does not extend to any fund in connection with workers’ compensationother asset; and (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, unemployment insurance, old-age pensions constructing or other social security programs, improving such fixed or for other similar purposes, other than any Lien imposed by ERISAcapital assets;
(d) Liens extensions, renewals, or replacements of mechanicsany Lien referred to in paragraphs (a) through (c) of this Section; provided, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in that the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books principal amount of the applicable PersonIndebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(e) good faith pledges any Lien against the Lessee or deposits any Consolidated Subsidiary evidencing the transfer of any receivables and related property to secure any Permitted Securitization Subsidiary (to the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of extent such Permitted Securitization Subsidiary constitutes a like nature (other than DebtConsolidated Subsidiary) incurred in the ordinary course of businesspursuant to any Permitted Securitization Transaction;
(f) any Lien arising out of against a Permitted Securitization Subsidiary (to the refinancing, extension, renewal or refunding of extent such Permitted Securitization Subsidiary constitutes a Consolidated Subsidiary) pursuant to any Debt secured by any Lien permitted by any of clauses (a) through (e) of this SectionPermitted Securitization Transaction; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);and
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities other Liens securing Indebtedness and other similar purposes, or zoning or other restrictions as to obligations in the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and aggregate which do not in any event materially impair their use in the operation to exceed 5% of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not Consolidated Total Assets at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000time.
Appears in 1 contract
Sources: Omnibus Amendment (Certegy Inc)
Negative Pledge. No Loan Party nor The Company will not, and will not permit any Subsidiary to, cause or permit, or agree or consent to cause or permit in the future (upon the happening of a Loan Party will createcontingency or otherwise), assume or suffer to exist any Lien on any asset of their respective Properties, whether now owned or hereafter acquired by itacquired, at any time to be subject to a Lien except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(bi) Liens for taxes, assessments or other similar charges, incurred in the ordinary course of business governmental charges that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPpayable;
(cii) pledges Liens incurred or deposits made in the ordinary course of business in respect of statutory obligations or claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like Persons, provided that the obligations secured by such Liens shall not be in default and the title of the Company or the Subsidiary, as the case may be, to, and its right to secure payment of workers’ compensationuse, the Property subject to participate in any fund in connection with workers’ compensationsuch Lien, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAis not materially adversely affected thereby;
(diii) Liens of mechanics, materialmen, warehousemen, carriers incurred or other like liens, securing obligations incurred deposits made in the ordinary course of business that: not incurred in connection with the borrowing of material amounts of money;
(1iv) are not overdue for a period Liens, arising in connection with court proceedings,
(A) in the nature of more than thirty (30) days; attachments, remedies and judgments, provided that the execution or (2) other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested diligently in good faith pursuant to and by appropriate proceedings, and
(B) securing appeal bonds, supersedeas bonds and other similar Liens arising in connection with court proceedings (including, without limitation, surety bonds and with respect to which adequate reserves with respect thereto are maintained on letters of credit) or any other instrument serving a similar purpose, provided that each judgment secured by a Lien described in this clause (iv) is, within 60 days after entry thereof, discharged or the books enforcement thereof is stayed pending appeal, or is discharged within 60 days after the expiration of the applicable Personsuch stay;
(ev) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for exceptions, encroachments, easements, rights-of-way, utilities covenants, conditions, restrictions and other similar purposestitle exceptions or encumbrances affecting real Property, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which provided they do not in any event the aggregate materially impair detract from the value of such real Property or materially interfere with their use in the operation ordinary conduct of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereofowning Person's business;
(ivi) Liens securing on Property of the Obligations created Company or arising under a Subsidiary, provided that such Liens secure only obligations owing to the Loan DocumentsCompany or any other Subsidiary;
(jvii) Liens securing Debt outstanding on the Closing Date and listed in SCHEDULE 5.15;
(viii) any Lien on Property that is acquired or constructed by the Company or any Subsidiary after the Closing Date that secures Indebtedness incurred by the Borrower owner of such Property to pay for all or a portion of the related purchase price or construction costs of such Property or any Subsidiary in connection with any NMTC Transactionimprovement thereon, provided that that
(iA) such Liens encumber only Lien shall not extend to or cover any Property other than Property or any improvement thereon acquired or constructed after the assets acquired Closing Date with the proceeds of the Indebtedness secured thereby (and shall not secure Indebtedness other than such DebtIndebtedness) and, and (ii) if required by the terms of the instrument originally creating such Liens are subordinated Lien, other Property that is an improvement to Liens securing the Obligations or is acquired for specific use in a manner satisfactory to the Administrative Agentconnection with such acquired Property;
(kB) such Lien shall secure Indebtedness in an amount not exceeding 100% of the lesser of (1) the cost of acquisition or construction of the Property to which such Indebtedness relates and (2) the Fair Market Value of the Property to which such Indebtedness relates, determined, in each case, at the time of the incurrence of such Indebtedness; and
(C) such Lien shall be created contemporaneously with, or within 180 days after, the acquisition or substantial completion of such Property;
(ix) any Lien existing on Property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any Property acquired by the Company or any Subsidiary at the time such Property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
(A) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person's becoming a Subsidiary or such acquisition of Property; and
(B) each such Lien shall extend solely to the item or items of Property so acquired and, if required by the terms of the instrument originally creating such Lien, other Property that is an improvement to or is acquired for specific use in connection with such acquired Property;
(x) Liens securing Debt renewals, extensions (as to time) and refinancing of Indebtedness secured by Liens permitted under by clause (vii), clause (viii) or clause (ix) of this Section 6.22(e10.6(a); , provided that that
(i) such Liens do not at any time encumber any property other than the property financed by such Debt and (iiA) the Debt amount of Indebtedness secured thereby does by each such Lien is not exceed the cost or fair market value, whichever is lower, increased in excess of the property being acquired amount of Indebtedness outstanding on the date of acquisitionsuch renewal, extension or refinancing, and the maturity of such Indebtedness is not shortened;
(lB) none of such Liens securing judgments for is extended to include any additional Property of the payment of money (Company or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j)any Subsidiary; and
(mC) other Liens affecting property with an aggregate fair value not to exceed $5,000,000immediately after such renewal, extension or refunding, no Default or Event of Default would exist.
Appears in 1 contract
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party Borrower and Guarantors will not create, assume incur, assume, or suffer to exist any Lien on mortgage, pledge, security interest, conditional sale, or other title retention agreement, encumbrance or other lien upon any asset Personal Property, Land or Project, now owned or hereafter acquired by itacquired, exceptof Borrower or Guarantors (the sale with recourse of receivables or any "sale and lease back" of any fixed assets being deemed to be the giving of a lien thereon for money borrowed), other than Permitted Encumbrances. Borrower and Guarantors will not mortgage or in any manner encumber any Land or Project or any part thereof, or permit or suffer to exist thereon any mortgage, lien, or encumbrance of any character (other than the legal operation and effect of the Mortgage from Lender pursuant to the terms hereof) other than the Permitted Encumbrances, and if any such mortgage, lien, or encumbrance shall become effective in relation to any Project or the Land or any part thereof, Borrower and Guarantors will forthwith pay, bond over or otherwise discharge the same. Notwithstanding the foregoing, Borrower and Guarantors shall not be prohibited from (i) purchasing encumbered assets or exchanging operating partnership units for encumbered or unencumbered property, or (ii) refinancing encumbered assets provided that, with respect to subparagraph (ii), Lender is given a customary right of first offer, including but not limited to, the following:
(a) Liens existing on Borrower or the date of this Agreement and set forth on Schedule 6.08Guarantor, as the case may be, shall first provide a written request for such refinancing to Lender including the desired term for such refinancing;
(b) Liens for taxes, assessments Lender shall have fifteen (15) days after receipt of such request from Borrower or similar charges, incurred in the ordinary course of business that are not yet due and payable a Guarantor to notify Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books such Guarantor of the applicable Person in accordance terms and conditions upon which Lender could provide such refinancing (which, among other terms, will provide that refinancing will be non-recourse with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(jcustomary carveouts); and
(mc) Borrower or the Guarantor, as the case may be, shall notify Lender, within thirty (30) days of receipt of such terms and conditions from Lender, that Borrower or the Guarantor, as the case may be, (i) will refinance with Lender upon such terms and conditions, (ii) will refinance with another lender because it was able to obtain better terms and provisions (which terms and provisions may not necessarily include a lower interest rate) from such other Liens affecting property lender, together with an aggregate fair value proof thereof (which proof need not to exceed $5,000,000include a loan commitment), or (iii) will not refinance the debt.
Appears in 1 contract
Negative Pledge. No Loan Party The Borrower will not, nor will it permit any Subsidiary of a Loan Party will its Subsidiaries to create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) mortgage Liens existing on to the date extent not prohibited, both before and after giving effect thereto, by the provisions of this Agreement Sections 5.21 (Consolidated Senior Secured Debt to Consolidated Total Capital Ratio), Section 5.22 (Consolidated Unencumbered Realty to Consolidated Unsecured Debt Ratio) and set forth on Schedule 6.08Section 5.23 (Consolidated Unencumbered Interest Coverage Ratio);
(b) carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's, statutory banker's or other like Liens for taxes, assessments or similar charges, incurred arising in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; days or (2) which are being contested diligently in good faith pursuant to by appropriate proceedings;
(c) Liens for taxes, assessments or other governmental charges not yet due or which are being contested in good faith and by appropriate proceedings and with respect to for which adequate reserves are taken in accordance with GAAP;
(d) Liens imposed by law on pledges or deposits in connection with workmen's compensation, unemployment insurance and other social security legislation which do not interfere with or adversely affect in any material respect thereto are maintained on the books ordinary conduct of the applicable Personbusiness of the Borrower or any of its Subsidiaries;
(e) good faith pledges or deposits to secure the performance of bids, tenders, trade or government contracts and leases (other than Debtfor borrowed money), leases, licenses, statutory obligations, surety and appeal bonds (other than in relation to judgments), performance bonds, performance bonds reserves for capital improvements and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) easements, rights-of-way, zoning and similar restrictions and other encumbrances or title defects incurred, or leases or subleases granted to others which are in existence as of the date hereof, or if not in existence as of the date hereof, do not interfere with or adversely affect in any material respect the ordinary conduct of the business, or detract from the value of the property, of the Borrower or any of its Subsidiaries;
(g) Liens securing reimbursement obligations with respect to trade letters of credit issued in the ordinary course of business; provided that such Liens only attach to the assets being acquired with the proceeds of such letters of credit;
(h) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien, to the extent such Lien is permitted by any of the foregoing clauses (a) through (e) of this Section; provided that (i) such Debt is not increased and is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens on properties securing security deposits of tenants, provided that the Obligations created or arising under the Loan Documents;aggregate amount of such security deposits secured by such Liens shall not exceed 5% of Consolidated Total Capital at any time outstanding; and
(j) Liens securing Debt incurred by the Borrower or of any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory or Specified Affiliate owing to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Borrower.
Appears in 1 contract
Negative Pledge. No Loan Party nor The Company will not, and will not permit any Restricted Subsidiary of a Loan Party will createto, assume create or incur, or suffer to exist be incurred or to exist, any Lien on any asset its or their property or assets, whether now owned or hereafter acquired by itacquired, or upon any income or profits therefrom, or acquire or agree to acquire, or permit any Restricted Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens existing on for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen, provided that payment thereof is not at the date of this Agreement and set forth on Schedule 6.08time required by Section 5.02 or 5.05;
(b) any Lien of or resulting from any judgment or award; provided that either (i) the amount secured thereby does not exceed 52 $50,000,000 or (ii) if the amount secured thereby does exceed $50,000,000, the time for the appeal or petition for rehearing of such judgment or award shall not have expired, or the Company or a Restricted Subsidiary shall in good faith be prosecuting an appeal or proceeding for a review thereof, and execution of such judgment or award shall be stayed pending such appeal or proceeding for review;
(c) Liens for taxesincidental to the conduct of business conducted by the Company and its Restricted Subsidiaries in the ordinary course of business or the ownership of properties and assets owned by the Company and its Restricted Subsidiaries (including Liens in connection with worker's compensation, assessments unemployment insurance and other like laws, warehousemen's and attorneys' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or similar chargestrade contracts, or to secure statutory obligations, surety or appeal bonds or other Liens of like general nature incurred in the ordinary course of business that are of the Company and its Restricted Subsidiaries and not yet due and payable or that are in connection with the borrowing of money, provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges actions or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAproceedings;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, encroachments, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning restrictions, declarations of covenants, conditions and restrictions, other title exceptions or other restrictions as to the use of real properties, which are necessary or appropriate in the good faith judgment of the Company for the conduct of the activities business of the Borrower Company and its Restricted Subsidiaries and which, individually or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which the aggregate, do not in any event materially impair their use in the operation of the business of the Borrower Company or of the Company and its Restricted Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided taken as a whole;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Administrative Agent prior Company or to the date hereof another Restricted Subsidiary;
(f) Liens existing as of January 25, 1998 and not objected to by the Administrative Agent prior to the date hereof;reflected in Exhibit J hereto, including any renewals, extensions or replacements of any such Lien, provided that:
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary no additional property is encumbered in connection with any NMTC Transactionsuch renewal, provided that (i) extension or replacement of any such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j)Lien; and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 1 contract
Negative Pledge. No Loan Party The Borrower will not, nor will the Borrower permit any Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
: (ai) Liens those Liens, if any, described on Schedule 5.8, concerning existing on Debt of the date of this Agreement and Borrower, to be set forth on Schedule 6.08;
(b) Liens for taxesand described more particularly therein, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and together with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; such Lien, provided that (i) such Debt is not secured by any additional assets, and the amount of such Debt secured by any such Lien is not increased; (ii) Liens incidental to the amount secured conduct of its business or benefited thereby is the ownership of its Properties which (A) do not increased except as contemplated by Section 6.22(b)secure Debt and (B) do not in the aggregate materially detract from the value of its Properties or materially impair the use thereof or the operation of its business, including, without limitation, easements, rights of way, restrictive covenants, zoning and other similar restrictions on real property; (iii) the direct or any contingent obligor with respect thereto is not changedmaterialmen's, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrancesmechanics', easements or reservationswarehousemen's, or rights of others for rights-of-waycarriers', utilities landlords' and other similar purposes, or zoning statutory Liens which secure Debt or other restrictions as to the use of real propertiesobligations that are not past due, which or, if past due are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged being contested in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred good faith by the Borrower or any the appropriate Subsidiary by appropriate proceedings; (iv) Liens for taxes not delinquent or taxes being contested in good faith and by appropriate proceedings; (v) pledges or deposits in connection with any NMTC Transactionworker's compensation, unemployment insurance and other social security legislation; (vi) deposits to secure performance of bids, trade contracts, leases, statutory obligations (to the extent not excepted elsewhere herein); (vii) grants of security and rights of setoff in deposit accounts, securities and other properties held at banks or financial institutions to secure the payment or reimbursement under overdraft, letter of credit, acceptance and other credit facilities; (viii) rights of setoff, banker's liens and other similar rights arising solely by operation of law; (ix) Purchase Money Liens, provided that (i) such Liens encumber only the assets acquired with the proceeds total amount of all such Debt, and when aggregated with any Debt described in clause (iix) below then outstanding, does not exceed, at any time, in aggregate amount, fifteen percent (15%) of Tangible Net Worth; (x) Liens on any Properties acquired by Borrower or any Subsidiary subsequent to the Closing Date, to the extent that (A) such Liens are subordinated to Liens securing existing at the Obligations in a manner satisfactory to the Administrative Agent;
time of acquisition, (k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (iiB) the Debt secured thereby is not secured by any other Properties of Borrower or such Subsidiary except the acquired Properties, (C) the amount of such Debt so secured thereby is not increased at or subsequent to the acquisition and (D) the total amount of all such Debt secured by all such acquired Properties, when aggregated with all Purchase Money Debt then outstanding, does not exceed the cost or fair market valueat any time, whichever is lowerin aggregate amount, fifteen percent (15%) of Tangible Net Worth; together with any Lien arising out of the property being acquired on refinancing, extension, renewal or refunding of any Debt secured by any such Lien, provided that such Debt is not secured by any additional assets, and the date amount of acquisition;
such Debt secured by any such Lien is not increased; (lxi) Liens securing judgments capital leases made in the ordinary course of business (but excluding, however, sale-leaseback transactions in any event) in which there is no provision for title to the payment leased Property to pass to the Borrower or such Subsidiary at the expiration of money the lease term or as to which no bargain purchase option exists; and (xii) rights of lessors in respect of Properties leased to the Borrower or appeal or other surety bonds relating to such judgments) not constituting an Event of Default its Subsidiaries under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000operating leases.
Appears in 1 contract
Sources: Credit Agreement (Avado Brands Inc)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will create, assume Enter into or suffer to exist exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or conditioning the creation or assumption of any Lien on upon any asset now owned of its property or hereafter acquired by it, except:
assets except (ai) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books favor of the applicable Person in accordance with GAAP;
Secured Parties or (cii) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(fA) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assetsSurviving Debt, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (ivB) any renewal or extension of the obligations secured or benefited thereby is purchase money Debt permitted by Section 6.22(b);
(g5.02(b)(iii) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as solely to the use of real properties, which are necessary for extent that the conduct of agreement or instrument governing such Debt prohibits a Lien on the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets property acquired with the proceeds of such Debt, and (iiC) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory any Capitalized Lease permitted by Section 5.02(b)(iv) solely to the Administrative Agent;
extent that such Capitalized Lease prohibits a Lien on the property subject thereto, (kD) Liens securing any Debt outstanding on the date any Subsidiary of such Loan Party becomes such a Subsidiary (so long as such agreement was not entered into solely in contemplation of such Subsidiary becoming a Subsidiary of such Loan Party), (E) any agreement where such the prohibition of the creation of the Lien is rendered ineffective by the Uniform Commercial Code, (F) the First Lien Loan Documents (subject to the terms of the Intercreditor Agreement), (G) customary restrictions in connection with Debt permitted under Section 6.22(e5.02(b), (H) any agreement of a Subsidiary that is not a Loan Party governing the Debt permitted by Section 5.02(b), (I) applicable law, (J) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or a Subsidiary, (K) customary provisions restricting assignment of any agreement entered into by the Borrower or a Subsidiary in the ordinary course of business, (L) any holder of a Lien permitted by Section 5.02(a) restricting the transfer of the property subject thereto, (M) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 5.02(e) pending the consummation of such sale or in leases, subleases, licenses or sub-licenses relating to the assets covered thereby, (N) customary provisions in partnership agreements, limited liability company organizational governance documents, asset sale and stock sale agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company or similar Person, (O) restrictions on cash or other deposits or net worth imposed by suppliers or landlords under contracts entered into in the ordinary course of business, (P) any instrument governing Debt assumed in connection with any Permitted Acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired, (Q) customary provisions in joint venture agreements and similar agreements applicable to joint ventures relating solely to such joint venture, or (R) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to above; provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost amendments or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating refinancings are no more materially restrictive with respect to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not encumbrances and restrictions than those prior to exceed $5,000,000such amendment or refinancing.
Appears in 1 contract
Sources: Second Lien Term Loan Agreement (Berliner Communications Inc)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will The Entities shall not incur, create, assume or suffer or permit to exist any Lien on any asset now owned of their property or hereafter acquired by itassets or on any income or rights in respect of any thereof, except:except the following (the "Permitted Liens"):
(ai) Liens existing on the date incurred and arising out of this Agreement surety bonds, appeal bonds, statutory obligations, bids, performance and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or return of money and similar charges, incurred in the ordinary course of business that are not yet due obligations and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ worker compensation, unemployment insurance, old-old age pensions or and other social security programs, or for other similar purposes, other than any Lien imposed by ERISAbenefits;
(dii) Liens of imposed by law, including carriers', warehousemen's, mechanics', materialmen, warehousemen, carriers or other like liens, securing obligations 's and vendors' Liens incurred in the ordinary course of business that: (1) and securing obligations which are not overdue for a period of more than thirty (30) days; yet due or (2) which are being contested diligently in good faith pursuant to by appropriate proceedings proceedings, and with respect in any such case as to which it shall have set aside adequate cash reserves in accordance with respect thereto are maintained on the books of the applicable PersonGAAP;
(eiii) Liens securing the payment of taxes, assessments and governmental charges or levies, either not yet due and payable or being contested in good faith pledges by appropriate legal or deposits administrative proceedings, and in any such case as to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred which it shall have set aside adequate cash reserves in the ordinary course of businessaccordance with GAAP;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbranceszoning restrictions, easements or easements, licenses, reservations, or rights of others for rights-of-wayprovisions, utilities and other similar purposescovenants, or zoning or other conditions, waivers, restrictions as to on the use of real properties, which are necessary for the conduct property or minor irregularities of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and title which do not in the aggregate impair the use of any event materially impair their use in parcel of property material to the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment Company or survey provided to the Administrative Agent prior to value of such property for the date hereof and not objected to by purpose of the Administrative Agent prior to business of the date hereofCompany;
(iv) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or purchase money Indebtedness; provided, however, that each such Lien does not secure any Subsidiary in connection with other Indebtedness and does not encumber any NMTC Transaction, provided property other than that (i) such Liens encumber only the assets property acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative AgentIndebtedness;
(kvi) extensions and renewals of Liens securing Debt permitted under Section 6.22(e)hereunder; provided provided, however, that (i) such Liens do the Indebtedness secured thereby is not at any time increased and the Lien does not encumber any property other than not previously encumbered by the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost Lien so extended or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j)renewed; and
(mvii) other Liens affecting property with an aggregate fair value not to exceed $5,000,000securing indebtedness permitted by Section 8(a)(i).
Appears in 1 contract
Negative Pledge. No Loan Party nor This Condition 5 (Negative Pledge) only applies to Senior Notes. So long as any Subsidiary Senior Note remains outstanding (as defined in the Agency Agreement), the Issuer will not, and will ensure that none of a Loan Party its Subsidiaries will create, assume or suffer to exist have outstanding any Lien on any asset now owned or hereafter acquired by itmortgage, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxescharge, assessments or similar chargeslien, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions pledge or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases interest (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured arising solely by any additional assets, operation of law or (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(ba Permitted Security Interest) (each a "Security Interest"), (iii) upon the direct whole or any contingent obligor with respect thereto is not changedpart of its present or future undertaking, and assets or revenues (ivincluding any uncalled capital) to secure any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservationsRelevant Indebtedness, or rights of others for rights-of-way, utilities and other similar purposes, payment under any guarantee or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to indemnity granted by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower Issuer or any Subsidiary in connection with respect of any NMTC TransactionRelevant Indebtedness without at the same time or prior thereto according to the Notes and the Coupons the same security as is created or subsisting to secure any such Relevant Indebtedness, provided guarantee or indemnity or such other security as shall be approved by an Extraordinary Resolution (as defined in the Agency Agreement) of the Noteholders. The Guarantor has agreed in the Deed of Guarantee in respect of the Senior Notes that, so long as any Senior Note remains outstanding (as defined in the Agency Agreement), the Guarantor will not, and will ensure that none of its Principal Subsidiaries will create, or have outstanding, any Security Interest (other than (i) such Liens encumber only the assets acquired with the proceeds arising solely by operation of such Debt, and law or (ii) such Liens are subordinated a Permitted Security Interest), upon the whole or any part of its present or future undertaking, assets or revenues (including any uncalled capital) to Liens securing secure any Relevant Indebtedness, or payment under any guarantee or indemnity granted by the Obligations Guarantor or any Principal Subsidiary in a manner satisfactory respect of any Relevant Indebtedness without at the same time or prior thereto according to the Administrative Agent;
Deed of Guarantee the same security as is created or subsisting to secure any such Relevant Indebtedness, guarantee or indemnity or such other security as shall be approved by an Extraordinary Resolution (kas defined in the Agency Agreement) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.Noteholders. In these Conditions:
Appears in 1 contract
Sources: Fiscal Agency Agreement
Negative Pledge. No Loan Party nor The Sponsor will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired (other than any shares of stock of the Sponsor that are repurchased by itthe Sponsor and retired or held by the Sponsor) or, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Encumbrances;
(b) any Liens for taxes, assessments on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Sponsor or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Subsidiary existing on the books Effective Date set forth on Schedule 8.2; provided, that such Lien shall not apply to any other property or asset of the applicable Person in accordance with GAAPSponsor or any Subsidiary;
(c) pledges purchase money Liens upon or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions fixed or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured Lien secures Indebtedness permitted by any additional assetsSection 8.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the amount secured acquisition, improvement or benefited thereby is not increased except as contemplated by Section 6.22(b), completion of the construction thereof; (iii) the direct or such Lien does not extend to any contingent obligor with respect thereto is not changed, other asset; and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market valueimproving such fixed or capital assets together with all interest, whichever is lower, fees and costs incurred in connection therewith;
(d) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the property being acquired Sponsor, (ii) existing on any asset of any Person at the time such Person is merged with or into the Sponsor or any Subsidiary of the Sponsor or (iii) existing on any asset prior to the acquisition thereof by the Sponsor or any Subsidiary of the Sponsor; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(le) Liens securing judgments for extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (d) of this Section 8.2; provided, that the payment principal amount of money (the Indebtedness secured thereby is not increased and that any such extension, renewal or appeal or other surety bonds relating replacement is limited to such judgments) not constituting an Event of Default under Section 8.01(j)the assets originally encumbered thereby; and
(mf) [Reserved];
(g) Liens securing the obligations of the Sponsor under the Revolving Credit Agreement; and
(h) Liens on shares of stock of any Foreign Subsidiary to the extent that the Guaranteed Obligations are secured pari passu with any other Liens affecting property with an aggregate fair value not to exceed $5,000,000Indebtedness or obligations secured thereby.
Appears in 1 contract
Negative Pledge. No Loan Party nor In consideration of the issuance of the Policy, the Company agrees that, so long as the Policy remains in effect (and Ambac is not in default under the Policy) or any Subsidiary of a Loan Party Reimbursement Obligation remains unpaid, the Company will create, assume not create or suffer to be created or to exist any Lien mortgage, pledge, security interest, or other lien (collectively “Liens”) on any asset of the Company’s electric utility properties or tangible assets used or useful in the Company’s electric utility business now owned or hereafter acquired by itto secure any indebtedness (including contingent indebtedness) for borrowed money (“Secured Debt”), exceptunless it shall simultaneously deliver to Trustee for the benefit of the Securityholders and as security for its payment obligations under the Agreement, either of the following at the election of the Company: (i) an equal and ratable security interest in the collateral securing such Secured Debt, or (ii) First Mortgage Bonds (as defined in the Agreement), as provided in Section 2.02 of the Agreement. This restriction does not apply to the Company’s subsidiaries, nor will it prevent any of them from creating or permitting to exist liens on their property or assets to secure any indebtedness. In addition, this restriction does not prevent the creation or existence of:
(a) Liens on property existing at the time of acquisition or construction of such property (or created within one year after completion of such acquisition or construction), whether by purchase, merger, construction or otherwise, or to secure the payment of all or any part of the purchase price or construction cost thereof, including the extension of any Liens to repairs, renewals, replacements substitutions, betterments, additions, extensions and improvements then or thereafter made on the date property subject thereto, including existing Liens on assets acquired or constructed with the proceeds of this Agreement and set forth indebtedness the interest payments on Schedule 6.08which are exempt from federal income tax;
(b) Liens for taxes, assessments Leases (operating or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(ccapital) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programsmade, or for other similar purposesexisting on property acquired by the Company, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(fc) any Lien arising out Financing of the refinancingCompany’s accounts receivable for electric or gas service;
(d) Liens for taxes, extensionassessments and other governmental charges not yet due, renewal or refunding the payment of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that which is not at the time required (i) such Debt is not secured which are being actively contested in good faith by any additional assetsappropriate proceedings, (ii) for which reserves have been established to the amount secured extent required by generally accepted accounting principles, and (iii) which do not pose any material risk of forfeiture or benefited thereby loss of any assets the forfeiture or loss of which would materially adversely affect the business, property, assets or financial condition of the Company and its subsidiaries taken as a whole;
(e) Liens created by or resulting from any judgment entered against the Company or any of its subsidiaries (i) which is not increased except as contemplated being actively contested in good faith by Section 6.22(b)appropriate proceedings, (ii) for which reserves have been established and are maintained to the extent required by generally accepted accounting principles, (iii) which does not pose any material risk of forfeiture or loss of any assets the direct forfeiture or any contingent obligor with respect thereto is not changedloss of which would materially adversely affect the business, property, assets or financial condition of the Company and its subsidiaries taken as a whole and (iv) any renewal which does not adversely affect the Company’s compliance with the terms hereof or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b)Agreement;
(gf) any Lien imposed as a result of a taking under other Liens incidental to the exercise normal conduct of the power business of eminent domain by the Company or any governmental body subsidiary or by any Person acting under governmental authority;
the ownership of its property and assets and which (hi) minor survey exceptions or minor encumbranceswere not incurred in connection with the incurrence of the indebtedness for borrowed money, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to (ii) do not in the aggregate materially impair the use of real properties, which are necessary for the conduct of the activities of the Borrower such property and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use assets in the operation of the business of the Borrower Company and its Subsidiaries subsidiaries taken as a whole, or materially detract from the value of such property and other easements, covenants, restrictions, reservations, exceptions and other matters shown assets for the purposes of such business;
(g) Liens on any title insurance commitment or survey provided to assets of the Administrative Agent prior to the date hereof and Company securing Secured Debt not objected to otherwise permitted by the Administrative Agent prior to foregoing clauses in an amount that does not exceed 7.5% of Net Assets;
(h) Any extensions, renewals or replacements (or successive extensions, renewals or replacements), in whole or in part, of Liens permitted by the date hereof;foregoing clauses; and
(i) Liens securing The pledge of any bonds or other securities at any time issued under any of the Obligations created or arising under the Loan Documents;
(j) Liens securing Secured Debt incurred permitted by the Borrower above clauses. Ambac agrees that the documents pursuant to which such collateral as is described in this Section 2.03 may be issued may require the Trustee to surrender such collateral to the Company without payment at any time when (A) the senior unsecured debt of the Company shall be rated (x) Baa1 or any Subsidiary in connection with any NMTC Transactionhigher by Moody’s and (y) BBB+ or higher by S&P, provided that and (B) all Secured Debt of the Company (x) not permitted by the provisions clauses (a) through (i) of this Section 2.03, shall have been satisfied and discharged or all security in whatever form securing such Liens encumber only the assets acquired with the proceeds of such Debt, Secured Debt in respect thereof shall have otherwise been released and (iiy) such Liens are subordinated to Liens securing Secured Debt permitted by clause (g) shall not exceed 5.0% of Net Assets. In the Obligations in a manner satisfactory event that First Mortgage Bonds were delivered to the Administrative Agent;
(kTrustee to satisfy the requirements of this Section 2.03 and the Company is entitled to their release in accordance with this paragraph, Ambac agrees to deliver to the Trustee the consent required by Section 2.03(b) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on Agreement promptly upon the date written request of acquisition;
(l) Liens securing judgments for the payment Company. Notwithstanding any surrender of money (or appeal or other surety bonds relating collateral pursuant to such judgments) not constituting an Event the preceding sentence, the provisions of Default under this Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not 2.03 shall continue to exceed $5,000,000apply in respect of the incurrence of additional Secured Debt of the Company.
Appears in 1 contract
Negative Pledge. No Loan Party Neither the Parent nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itany of them, except:
(a) Liens any Lien existing on the date of this Agreement and disclosed in the financial statements referred to in Section 5.4 or set forth on in Schedule 6.086.4;
(b) Liens imposed by Law for taxes, assessments or similar charges, incurred in the ordinary course charges of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to any Governmental Authority for claims which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) 60 days; , or (2) are to the extent that such Lien is being contested diligently in good faith pursuant by appropriate actions and adequate reserves in accordance with GAAP are being maintained therefor, provided that no notice of Lien has been filed or recorded under the Code;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law or created in the ordinary course of business, provided that (i) the obligation secured by the applicable Lien has not been delinquent for more than 90 days or remains payable without penalty and, in each case, the property subject to such Lien is not subject to forfeiture as a result of such Lien or (ii) the applicable Lien is being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(d) Liens (other than any Lien imposed under ERISA) consisting of pledges or deposits in the ordinary course of business (i) required in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) 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 to secure obligations with respect to which adequate reserves with respect thereto are casualty or liability insurance maintained on by the books Parent or any of the applicable Personits Subsidiaries;
(e) good faith pledges Liens on property of the Parent or deposits to secure any Subsidiary securing (i) the non-delinquent performance of bids, trade contracts and leases (other than Debtfor borrowed money), leases or statutory obligations, (ii) surety and bonds (excluding appeal bonds, performance bonds and other bonds posted in connection with court proceedings or judgments) and (iii) other non-delinquent obligations of a like nature (other than Debtincluding those to secure health, safety and environmental obligations) in each case incurred in the ordinary course of business;
(f) Liens consisting of judgment or judicial attachment liens and Liens securing contingent obligations on appeal bonds and other bonds posted in connection with court proceedings or judgments, provided that (x) in the case of judgment and judicial attachment liens, the enforcement of such Liens is effectively stayed, and (y) the aggregate amount secured by all such Liens does not at any Lien arising out time exceed the greater of (i) US$50,000,000 and (ii) 0.5% of the refinancingParent’s consolidated total assets;
(g) easements, extensionrights-of-way, renewal restrictions, encroachments, protrusions and other similar encumbrances on real property which in the aggregate do not materially detract from the value of such property or refunding materially interfere with the ordinary conduct of the businesses of the Parent and its Subsidiaries;
(h) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such leases are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any Debt secured by any Lien permitted by any statutory or common law provision relating to bankers’ liens, rights of clauses set-off or similar rights and remedies (aor, with respect to accounts located in Luxembourg, contractual provisions) through (e) as to deposit accounts or other funds maintained with a creditor depository institution and/or Liens arising in the ordinary course of this Sectionbusiness with respect to deposit accounts relating to intercompany cash pooling, interest set-off and/or sweeping arrangements; provided that (i) such Debt deposit account is not secured a dedicated cash collateral account and is not subject to restrictions against access by any additional assets, the Parent or the applicable Subsidiary in excess of those set forth by regulations promulgated by the FRB and (ii) the amount secured or benefited thereby such deposit account is not increased except as contemplated intended by Section 6.22(b), (iii) the direct Parent 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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Subsidiary to provide collateral to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsdepository institution;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary arising in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative AgentSecuritization Transactions;
(k) Liens on property of any Foreign Subsidiary securing Debt of such Foreign Subsidiary and/or any other Foreign Subsidiary that is permitted under Section 6.22(e6.6;
(l) any Lien existing on property (and the proceeds thereof) existing at the time of its acquisition (by merger or otherwise) or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof (other than any Lien on the equity interests of any Person that becomes a Subsidiary); provided that (i) such Liens do Lien was not at any time encumber any property other than the property financed by created in contemplation of such Debt acquisition or such Person becoming a Subsidiary; and (ii) the Debt or other obligation secured thereby is not prohibited by Section 6.6;
(m) Liens arising out of the conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Parent or any of its Subsidiaries in the ordinary course of business;
(n) Liens solely on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Parent or any Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;
(o) Liens securing reimbursement obligations incurred in the ordinary course of business for trade letters of credit or banker’s acceptances, which Liens encumber only goods, or documents of title covering goods, that are purchased in transactions for which such letters of credit or banker’s acceptances are issued;
(p) Liens incurred in the ordinary course of business in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(q) leases, subleases, licenses or sublicenses (including, in the case of licenses and sublicenses, of intellectual property) granted to others in the ordinary course of business that do not materially interfere with the ordinary conduct of the business of the Parent or any Subsidiary and do not secure any Debt;
(r) Liens of a collecting bank arising under Section 4-210 of the Uniform Commercial Code on items in the ordinary course of collection;
(s) options, put and call arrangements, rights of first refusal and similar rights relating to investments in joint ventures, partnerships and other similar investments not prohibited by this Agreement;
(t) rights of first refusal, put, call and similar rights arising in connection with repurchase agreements that are not prohibited by this Agreement;
(u) any Lien arising under any Loan Document;
(v) any Lien on an asset arising out of an agreement to dispose of such asset, to the extent such disposition is not prohibited by this Agreement and such Lien does not secure any other obligation;
(w) any extension, renewal or substitution of or for any Lien described in clause (a) or (l) above, in each case (A) to the extent that the amount of the Debt or other obligation secured by the applicable Lien shall not exceed the cost amount of the Debt or fair market valueother obligation existing immediately prior to such extension, whichever is lower, renewal or substitution and (B) so long as the scope of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating subject to such judgments) Lien is not constituting an Event of Default under Section 8.01(j)increased; and
(mx) in addition to Liens permitted by clauses (a) through (w) above, any other Liens affecting Lien securing obligations in a Dollar Equivalent amount at the time of creation thereof that, in the aggregate with the outstanding amount of all other Debt and other obligations then secured pursuant to this clause (x), does not exceed 12.5% of Consolidated Shareholders’ Equity as shown on the then most recent consolidated financial statements of the Parent delivered to the Administrative Agent pursuant to Section 6.1 of this Agreement (or, prior to such initial delivery pursuant to Section 6.1 of this Agreement, as shown on the most recent such financial statements available to the Company). Any lien permitted above under this Section 6.4 on any property with an aggregate fair value not may extend to exceed $5,000,000identifiable proceeds of such property.
Appears in 1 contract
Sources: Credit Agreement (Pentair Inc)
Negative Pledge. No Loan Party nor API will not, and will not permit any Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset (including, without limitation, any stock of any Material Subsidiary) now owned or hereafter acquired by it, except:
(ai) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred arising in the ordinary course of its business that are which (A) do not yet due secure Debt and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(cB) pledges or deposits made do not in the ordinary course aggregate materially detract from the value of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions its assets or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred materially impair the use thereof in the ordinary course operation of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of its business;
(fii) any Lien on any assets securing Debt (including Capital Leases) incurred or assumed for the purpose of financing all or any part of the cost of acquiring such asset, provided that such Lien attaches to such asset concurrently with or within 90 days after the acquisition thereof;
(iii) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses (a) through (e) of this Section; Section 7.02(b), provided that (i) such Debt is not increased and is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and ;
(iv) any renewal Lien (x) existing on any asset prior to the acquisition thereof by API or extension a Consolidated Subsidiary and not created in contemplation of such acquisition and (y) arising out of the obligations refinancing, extension, renewal, replacement or refunding of any Debt secured or benefited thereby is by any such Lien permitted by Section 6.22(bthe immediately preceding sub-clause (x), provided that such Debt is not increased and is not secured by any additional assets;
(gv) any Lien imposed Liens for taxes or assessments and similar charges either (A) not delinquent or (B) being contested in good faith by appropriate proceedings and as a result to which adequate reserves have been set aside on the books of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authorityAPI and its Subsidiaries;
(hvi) Liens arising out of judgments or orders against API or any Consolidated Subsidiary with respect to which API or such Consolidated Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, provided that (A) API or such Consolidated Subsidiary, as the case may be, shall have secured, within 60 days after the creation thereof, an effective stay of execution pending such appeal or review, and (B) except with respect to (x) judgments and orders with respect to non-United States taxes against Consolidated Subsidiaries organized or conducting a substantial portion of their business outside the United States, and (y) judgments and orders for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order, the aggregate amount of such judgments and orders shall not exceed $200,000,000;
(vii) Liens for minor survey exceptions exceptions, or minor encumbrances, easements or reservationsreservations of, or rights of others for rights-of-for, rights of way, utilities sewers, electric lines, telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower encumbrances, easements, reservations, rights and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which restrictions do not in any event the aggregate materially detract from the value of the real properties of API and the Consolidated Subsidiaries, considered as a whole, or materially impair their use in the operation of the business of API or the Borrower and its Consolidated Subsidiary owning the same;
(viii) Liens of Consolidated Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided securing Debt of such Consolidated Subsidiaries to API;
(ix) Liens in favor of the Administrative Agent prior to or the date hereof Banks securing obligations and not objected to by liabilities of the Administrative Agent prior to the date hereofBorrowers hereunder;
(ix) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing the Obligations created obligations that are not overdue by more than 90 days or arising under the Loan Documentsare being contested in good faith by appropriate proceedings;
(jxi) Liens securing Debt incurred by pledges and deposits made in the Borrower ordinary course of business in compliance with workers’ compensation, unemployment insurance and pension or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agentother social security laws or regulations;
(kxii) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other than obligations of a like nature, in each case in the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, ordinary course of the property being acquired on the date of acquisition;
(l) 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(j)business; and
(mxiii) to the extent not covered by the foregoing, any other Liens affecting property with an incurred in the ordinary course of business, provided that the aggregate fair value amount of all such other Liens shall not to exceed $5,000,000100,000,000 at any time outstanding.
Appears in 1 contract
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party The Borrower will not create, assume or suffer to exist any Lien on any asset its Property, whether now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Liens;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained existence on the books date hereof, and any renewal or extension of any such Lien which is limited to the original Property covered thereby and which secures exclusively any renewal or extension of the applicable Person in accordance with GAAPoriginal secured financing;
(c) pledges or deposits made in Liens upon any Property acquired after the ordinary course of business date hereof to secure payment the purchase price of workers’ compensationsuch Property, and any renewal or extension of any such Lien which is limited to participate in the original Property covered thereby and which secures exclusively any fund in connection with workers’ compensation, unemployment insurance, old-age pensions renewal or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAextension of the original secured financing;
(d) Liens any Lien existing on any Property acquired after the date hereof at the time of mechanicsits acquisition by the Borrower (and not created in anticipation of such acquisition), materialmenif permitted by applicable Requirement of Law, warehousemen, carriers or provided that such Lien shall not apply to any other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books Property of the applicable PersonBorrower;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (any Lien on Property owned by Persons other than Debt)the Borrower and acquired (or deemed to be acquired) under a financial lease in respect of which the Borrower is the lessee, statutory obligations, surety and appeal bonds, performance bonds or claims arising from the use or loss of or damage to such Property; provided that any such Lien secures only rentals and other obligations of a like nature (other than Debt) incurred in amounts payable under such lease and such Property was not owned by the ordinary course of businessBorrower at any time prior to becoming subject to such lease;
(f) any Lien or right of setoff arising out of the refinancing, extension, renewal or refunding of pursuant to any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor standard form account agreement for deposits and similar accounts with respect thereto is not changed, banks and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b)financial institutions;
(g) any Lien imposed as a result of a taking under the exercise Liens arising in connection with Permitted Securitizations covering Property of the power Borrower having an aggregate fair market value not exceeding an amount equal to 2% of eminent domain by any governmental body the total assets of the Borrower (determined in accordance with GAAP as of the last day of the fiscal quarter of the Borrower ending on or by any Person acting under governmental authorityimmediately prior to the date of determination);
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities any Lien on Property of the Borrower and its Subsidiaries arising in connection with treasury operations (operaciones de tesorería) or which customarily exist on properties of corporations engaged Hedge Agreements, in similar activities and similarly situated and which do not in any event materially impair their use each case entered into by the Borrower in the operation ordinary course of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;business; and
(i) Liens securing created by operation of the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred risk prevention and mitigation rules required by the Borrower local clearing and settlement processes of Small Value Payment Systems (“Sistemas de Pago de Bajo Valor”), as approved by the Superintendencia Financiera pursuant to Decree 1400 of 2005, as replaced or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated amended from time to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000time.
Appears in 1 contract
Sources: Senior Bridge Loan Agreement (Grupo Aval Acciones Y Valores S.A.)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will createCreate, assume permit to exist, or suffer to exist the creation of, any Lien Lien, on any asset now owned of its properties or hereafter acquired by itassets (real or personal, tangible or intangible), except:
(a) Liens existing on the date of this Agreement and set forth Closing Date that are listed on Schedule 6.08Annex I hereto;
(b) Liens for taxes, assessments or governmental charges or levies to the extent not required to be paid by Section 7.02 hereof;
(c) Liens imposed by law, such as materialmen's, mechanics', carriers, workmen's, and repairmen's Liens and other similar charges, incurred Liens arising in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) which are not overdue for a period of more than thirty (30) days; ;
(d) pledges or (2) are being contested diligently in good faith pursuant deposits to appropriate proceedings and with respect secure obligations under workmen's compensation laws or similar legislation or to which adequate reserves with respect thereto are maintained on the books secure public or statutory obligations of the applicable PersonBorrower;
(e) good faith pledges certain de minimus Liens with respect to the assets and properties acquired in acquisitions permitted pursuant to Section 8.03 hereof which were existing upon such assets or deposits properties prior to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of businessrelevant permitted acquisitions;
(f) Liens in favor of any Lien arising out Person (whether or not the seller of such assets) upon property or assets of the refinancing, extension, renewal Borrower or refunding any of its Subsidiaries incurred solely for the purpose of financing the acquisition of any Debt such assets, provided, no such Lien shall extend to or over any property or asset other than the property being acquired and provided, further that (i) the aggregate principal amount of the Indebtedness at any one time outstanding secured by such Liens shall not exceed $2,000,000.00 and (ii) the incurrence of any such Indebtedness shall not otherwise be prohibited by the terms of this Agreement; and
(g) the replacement, extension or renewal of any Lien permitted by any of clauses (a) through (ef) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase of principal amount) of this Section; provided that (i) such Debt is not the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000thereby.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hooper Holmes Inc)
Negative Pledge. No Loan Party nor The Borrower, Holdings and International will not, and will not permit any Subsidiary of a Loan Party will their Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of payments set forth in Section 2.21 and Section 8.2 of this Agreement and set forth on Schedule 6.08;Agreement
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or other like lienswithin 90 days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction 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;
(e) good faith pledges any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or deposits into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to secure the performance acquisition thereof by the Borrower or any Subsidiary of bidsthe Borrower; provided, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred that any such Lien was not created in the ordinary course contemplation of business;any of the foregoing and 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; and
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this SectionSection 7.2; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (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 replacement is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as limited to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000originally encumbered thereby.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (FGX International Holdings LTD)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of payments set forth in Section 2.22 or Section 8.2 of this Agreement and set forth on Schedule 6.08Agreement;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Restricted Subsidiary existing on the Sixth Amendment Effective Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISARestricted Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or within 180 days after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend to any other like liensasset; and (iv) the principal amount of the Indebtedness secured thereby does not exceed the cost of acquiring, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; constructing or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained improving such fixed or capital assets on the books date of the applicable Personsuch acquisition, construction or improvement;
(e) good faith pledges Liens on property or deposits Capital Stock of any Person that becomes a Restricted Subsidiary after the Third Amendment Effective Date in accordance with the terms of this Agreement; provided that such Liens (i) exist at the time such Person becomes a Restricted Subsidiary and are not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary, (ii) do not extend to secure any property owned by the performance Borrower or its other Restricted Subsidiaries and (iii) the aggregate principal amount of bids, trade contracts and leases (other than DebtIndebtedness does not exceed the amount permitted pursuant to Section 7.1(f), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) Liens on property at the time the Borrower or any of its Restricted Subsidiaries acquires the property (including by way of merger with or into the Borrower or any Subsidiary); provided that such Liens (i) exist at the time of such acquisition and are not created in contemplation or in connection with such acquisition, and (ii) do not extend to any other property owned by the Borrower or its Restricted Subsidiaries;
(g) Refinancings, extensions, renewals, or replacements of any Lien arising out referred to in paragraphs (a) through (f) of this Section 7.2; provided, that the principal amount of the Indebtedness secured thereby is not increased except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, extension, renewal or refunding of replacement and by an amount equal to any Debt secured by accrued and unpaid interest and fees thereon and that any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assetsrefinancing, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)extension, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of replacement is limited to the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authorityassets originally encumbered thereby;
(h) minor survey exceptions or minor encumbrancesLiens securing any Indebtedness permitted by any of Sections 7.1(i), easements or reservations7.1(j), or rights of others for rights-of-way7.1(k), utilities and other similar purposes7.1(l), or zoning or other restrictions as subject to the use terms and conditions of real propertiessuch Section; provided, which are necessary for the conduct that such Liens securing any Indebtedness permitted by Section 7.1(j) or 7.1(k) may only extend to property and Capital Stock of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereofForeign Subsidiaries;
(i) Liens securing Indebtedness permitted by this Agreement (which may include Indebtedness for borrowed money, to the Obligations created or arising under extent permitted by this Agreement), in an amount at any time outstanding not to exceed the Loan Documentsgreater of (x) $50,000,000 and (y) 15% of LTM Consolidated EBITDA (as of the date incurred);
(j) Liens securing Debt incurred by the Borrower or Indebtedness (other than for borrowed money) in an aggregate principal amount outstanding at any Subsidiary in connection with any NMTC Transaction, provided time that (i) does not exceed $5,000,000 and such Liens do not encumber only the assets acquired with the proceeds Capital Stock of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;any Subsidiary; and
(k) Liens securing Debt permitted under Section 6.22(e); provided in respect of Permitted Receivables Financings that (i) such Liens do not at any time encumber any property other than extend only to the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Receivables Assets subject thereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will createCreate, incur, assume or suffer permit to exist any Lien on any asset property or assets (including stock or other securities of Subsidiaries) now owned or hereafter acquired by itit or on any income or rights in respect of any thereof, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.03;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens for taxesimposed by law, assessments or similar charges, incurred arising in the ordinary course of business and securing obligations that are not yet due and payable overdue by more than 30 days or that are being contested in good faith and compliance with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPSection 5.03;
(c) pledges or and deposits and other Liens made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection compliance with workers’ compensation, unemployment insurance, old-age pensions or insurance and other social security programs, laws or for other similar purposes, other than any Lien imposed by ERISAregulations;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1including deposits) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, tenders, trade contracts and leases (other than Debt)contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred nature, in each case in the ordinary course of business;
(e) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere materially with the ordinary conduct of business of the Company or any Subsidiary;
(f) any Lien arising out of existing on any property or asset prior to the refinancing, extension, renewal acquisition thereof by the Company or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this SectionSubsidiary; provided that (i) such Debt Lien is not secured by any additional assets, 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 amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct Company 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 6.22(b)Subsidiary;
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authorityLiens (including deposits) in connection with self-insurance;
(h) minor survey exceptions judgment or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposesLiens in connection with legal proceedings in an aggregate principal amount (net of amounts for which relevant insurance providers have delivered written acknowledgements of coverage) not to exceed $125,000,000, or zoning provided that the execution or other restrictions as to enforcement of such liens is effectively stayed and the use of real properties, which claims secured thereby are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged being actively contested in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to good faith by the Administrative Agent prior to the date hereofappropriate proceedings;
(i) Liens securing the Obligations created arising in connection with advances or arising progress payments under the Loan Documentsgovernment contracts;
(j) Liens on assets of Subsidiaries securing Debt incurred by Indebtedness payable to the Borrower Company or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative AgentWholly-Owned Consolidated Subsidiary;
(k) Liens on Transferred Receivables, Related Security and Collections securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisitionPermitted Receivables Financing Indebtedness;
(l) Liens on the equipment identified in Schedule 6.01 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(j)Permitted Onan Lease Obligations; and
(m) Liens securing Indebtedness other Liens affecting property with an than Indebtedness described in paragraphs (a) through (l) above, to the extent and only to the extent that the aggregate fair value amount of Priority Indebtedness shall not to exceed $5,000,000425,000,000 at any time.
Appears in 1 contract
Sources: Credit Agreement (Cummins Inc)
Negative Pledge. No Loan Party The Borrower will not, nor will the Borrower permit any Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
: (ai) those Liens, if any, described on Schedule 5.6, concerning existing debt of the Borrower, to be set forth and described more particularly therein, together with any Lien arising out of the 251094.7/ 383. 840 24 refinancing, extension, renewal or refunding of any debt secured by any such Lien, provided that such debt is not secured by any additional assets, and the amount of such debt secured by any such Lien is not increased; (ii) Liens existing on incidental to the date conduct of this Agreement its business or the ownership of its Properties which (A) do not secure debt and set forth on Schedule 6.08;
(bB) Liens for taxes, assessments or similar charges, incurred do not in the ordinary course aggregate materially detract from the value of business its Properties or materially impair the use thereof or the operation of its business, including, without limitation, easements, rights of way, restrictive covenants, zoning and other similar restrictions on real property; (iii) materialmen's, mechanics', warehousemen's, carriers', landlords' and other similar statutory Liens which secure debt or other obligations that are not yet past due, or, if past due and payable or that are being contested in good faith and with due diligence by the Borrower or the appropriate Subsidiary by appropriate proceedings proceedings; (iv) Liens for taxes not delinquent or taxes being contested in good faith and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
by appropriate proceedings; (cv) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ worker's compensation, unemployment insurance, old-age pensions or insurance and other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
legislation; (dvi) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt)contracts, leases, statutory obligationsgrants of security and rights of setoff in accounts, surety and appeal bonds, performance bonds securities and other obligations Properties held at banks or financial institutions to secure the payment or reimbursement under overdraft, letter of a like nature credit, acceptance and other credit facilities; (viii) rights of setoff, banker's liens and other than Debtsimilar rights arising solely by operation of law; (ix) incurred Purchase Money Liens; (x) Liens on any Properties acquired by Borrower or any Subsidiary subsequent to the Closing Date, to the extent that (A) such Liens are existing at the time of acquisition, (B) the debt secured thereby is not secured by any other Properties of Borrower or such Subsidiary except the acquired Properties, (C) the amount of such debt so secured thereby is not increased at or subsequent to the acquisition and (D) the total amount of all such debt secured by all such acquired Properties does not exceed at any time, in the ordinary course aggregate amount, fifteen percent (15%) of business;
(f) Tangible Net Worth; together with any Lien arising out of the refinancing, extension, renewal or refunding of any Debt debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; such Lien, provided that (i) such Debt debt is not secured by any additional assets, (ii) assets and the amount of such debt secured or benefited thereby by any such Lien is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, increased; and (ivxi) any renewal or extension capital leases made in the ordinary course of business (but excluding, however, Sale-Leaseback Transactions to the obligations secured or benefited thereby is extent not permitted by Section 6.22(b);
(g5.9) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others in which there is no provision for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as title to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided leased Property to the Administrative Agent prior pass to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any such Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only at the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, expiration of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (lease term or appeal or other surety bonds relating as to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000which no bargain purchase option exists.
Appears in 1 contract
Sources: Credit Agreement (Apple South Inc)
Negative Pledge. No The Borrower will not, and will not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by itacquired, except:
for the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by: (a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assetsRequirements of Law, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)any Loan Document, (iii) the direct or any contingent obligor with respect thereto is not changed[reserved], and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
documentation governing Incremental Equivalent Debt, (gv) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any governmental body documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(v), 6.01(a)(viii) or by 6.01(a)(xxvii) and (vii) any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as documentation governing any Permitted Refinancing incurred to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged refinance any such Indebtedness referenced in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
clauses (i) Liens securing through (vi) above; provided, that with respect to Indebtedness (A) referred to in clauses (iv) and (v) above, such restrictions shall be no more restrictive in any material respect than the Obligations created or arising under restrictions and conditions in the Loan Documents;
Documents or, in the case of Junior Financing, are market terms at the time of issuance and (jB) Liens securing Debt incurred by clause (v) above, such restrictions shall not expand the Borrower scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced; (b) customary restrictions and conditions existing on the Effective Date and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition; (c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any Subsidiary in connection with any NMTC Transaction, provided that (i) assets pending such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e)sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder; (id) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market valuecustomary provisions in leases, whichever is lowerservice agreements, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value licenses, sublicenses, covenants not to exceed $5,000,000.sue and other contracts restricting the assignment thereof;
Appears in 1 contract
Sources: Credit Agreement (N-Able, Inc.)
Negative Pledge. No Loan Borrower Party nor shall, or shall permit any Subsidiary of a Loan any Borrower Party will to, directly or indirectly, enter into any agreement with any Person that prohibits or restricts or limits the ability of any Borrower Party or any such Subsidiary to create, assume incur, pledge, or suffer to exist any Lien on upon any asset now owned of its respective assets, or hereafter acquired by it, except:
restricts the ability of any Subsidiary of a Borrower to pay Dividends to such Borrower except prohibitions or conditions (a) Liens existing on under the date of this Agreement and set forth on Schedule 6.08;
Loan Documents, (b) Liens for taxesunder the Senior Unsecured Notes Documents, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges under the definitive documentation in respect of any Funded Debt permitted by Section 8.1(d) solely to the extent that the agreement or deposits made in instrument governing such Funded Debt or Capitalized Lease Obligation prohibits a Lien on the ordinary course property acquired with the proceeds of business such Indebtedness or the property subject to secure payment of workers’ compensationsuch Capitalized Lease Obligation, to participate in any fund in connection with workers’ compensationrespectively, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens existing by reason of mechanicscustomary provisions restricting pledges, materialmenassignments, warehousemen, carriers subletting or other like lienstransfers contained in leases, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings licenses and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred similar agreements entered into in the ordinary course of business;
; provided, that such restrictions are limited to the property or assets subject to such leases, licenses or similar agreements, as the case may be, (e) with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with the disposition of all or substantially all of the Equity Interests or assets of such Subsidiary, (f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured imposed by any Lien amendments or refinancings that are otherwise permitted by any of clauses the Loan Documents or the contracts, instruments or obligations referred to in clause (ac) through (e) of this Sectionabove; provided that such amendments or refinancings are no more materially restrictive with respect to such prohibitions and limitations than those in effect prior to such amendment or refinancing (i) such Debt is not secured as determined in good faith and, if requested by any additional assetsAdministrative Agent, (ii) the amount secured or benefited thereby is not increased except as contemplated certified in writing to each Administrative Agent by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension an Authorized Signatory of the obligations secured Administrative Borrower or benefited thereby is permitted by Section 6.22(b);
(g) under any Lien imposed as a result Funded Debt of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired outstanding on the date such Person first becomes a Subsidiary of acquisition;
(l) Liens securing judgments for a Borrower; provided, that the payment agreements imposing such prohibitions or conditions were not entered into solely in contemplation of money (or appeal or other surety bonds relating to such judgments) not constituting an Event Person becoming a Subsidiary of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000a Borrower.
Appears in 1 contract
Sources: Credit Agreement (Zayo Group LLC)
Negative Pledge. No Loan Party (a) Neither the Borrower nor IR Parent will, nor will they permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist guarantee any Lien indebtedness for money borrowed secured by a Mortgage on any asset Principal Property of the Borrower, IR Parent or a Restricted Subsidiary or on any shares or indebtedness of a Restricted Subsidiary (whether such Principal Property, shares or indebtedness are now owned or hereafter acquired acquired) without, in any such case, effectively providing concurrently with the creation, assumption or guaranteeing of such indebtedness that the Loans and the obligations of the Borrower and IR Parent hereunder and under the Notes (together, if the Borrower and IR Parent shall so determine, with any other indebtedness then or thereafter existing created, assumed or guaranteed by itthe Borrower, except:IR Parent or such Restricted Subsidiary ranking equally with the Loans and the obligations of the Borrower and IR Parent hereunder and under the Notes) shall be secured equally and ratably with such indebtedness excluding, however, from the foregoing any indebtedness secured by a Mortgage (including any extension, renewal or replacement, or successive extensions, renewals or replacements, of any Mortgage hereinafter specified or any indebtedness secured thereby, without increase of the principal of such indebtedness):
(ai) Liens on property, shares or indebtedness of any corporation which Mortgage exists at the time such corporation becomes a Restricted Subsidiary; or
(ii) on property existing at the time of acquisition thereof by the Borrower, IR Parent or a Restricted Subsidiary, or to secure any indebtedness incurred by the Borrower, IR Parent or a Restricted Subsidiary prior to, at the time of, or within 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operation of such property, which indebtedness is incurred for the purpose of financing all or any part of the purchase price thereof or construction or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement the Mortgage shall not apply to any property theretofore owned by the Borrower, IR Parent or a Restricted Subsidiary, other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located; or
(iii) on property, shares or indebtedness of a corporation, which Mortgage exists at the time such corporation is merged into or consolidated with the Borrower, IR Parent or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to the Borrower, IR Parent or a Restricted Subsidiary; or
(iv) on property of a Restricted Subsidiary to secure indebtedness of such Restricted Subsidiary to the Borrower, IR Parent or another Restricted Subsidiary; or
(v) on property of the Borrower, IR Parent or a Restricted Subsidiary in favor of the United States of America or any state thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Mortgage; or
(vi) on property, which Mortgage exists at the date of this Agreement and set forth on Schedule 6.08;Agreement; or
(bvii) Liens for taxes, assessments or similar charges, incurred in with the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books prior written approval of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensationRequired Banks; provided, to participate in however, that any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien Mortgage permitted by any of the foregoing clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets), (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) and (v) of this Section 5.6 shall not extend to or cover any property of the direct Borrower, IR Parent or such Restricted Subsidiary, as the case may be, other than the property specified in such clauses and improvements thereto.
(b) Notwithstanding the provisions of subsection (a) of this Section 5.6, the Borrower, IR Parent or any contingent obligor Restricted Subsidiary may create, assume or guarantee secured indebtedness for money borrowed which would otherwise be prohibited in subsection (a) in an aggregate amount which, together with all other such indebtedness for money borrowed by the Borrower, IR Parent and their Restricted Subsidiaries and the Attributable Debt in respect thereto is of Sale and Leaseback Transactions existing at such time (other than Sale and Leaseback Transactions the proceeds of which have been applied in accordance with Section 5.6(d)(ii)), does not changedat the time of such creation, assumption or guaranteeing exceed 5% of Consolidated Net Worth.
(c) Notwithstanding the foregoing provisions of this Section 5.6, neither the Borrower nor IR Parent will permit any Subsidiary (other than a Restricted Subsidiary) to which after the date hereof the Borrower, IR Parent or a Restricted Subsidiary has transferred any assets to create, assume or guarantee any indebtedness for money borrowed secured by a Mortgage on such assets unless such assets could have been so secured in accordance with the provisions of this Agreement by the Borrower, IR Parent or such Restricted Subsidiary making such transfer.
(d) Neither the Borrower nor IR Parent will, nor will they permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless (ivi) any renewal the Borrower, IR Parent or extension such Restricted Subsidiary would be entitled, pursuant to the foregoing subsections of this Section 5.6, to incur indebtedness secured by a Mortgage on such Principal Property without equally and ratably securing the Loans and the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries IR Parent hereunder and under the Notes, or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business (ii) each of the Borrower and its Subsidiaries IR Parent shall (and other easements, covenants, restrictions, reservations, exceptions in any case each of the Borrower and other matters shown on any title insurance commitment or survey provided IR Parent covenants that it will) apply an amount equal to the Administrative Agent prior fair value (as determined by the Borrower’s or IR Parent’s Board of Directors) of such Principal Property so leased to the retirement, within 180 days of the effective date hereof of any such Sale and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by Leaseback Transaction, of indebtedness of the Borrower and IR Parent for money borrowed which by its terms matures at, or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only may be extended or renewed at the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, option of the property being acquired on Borrower and IR Parent to, a date more than 12 months after the date of acquisition;
(l) Liens securing judgments for the payment creation of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000indebtedness.
Appears in 1 contract
Negative Pledge. No Loan Party nor Guarantor shall not, and shall not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:except for the following (collectively called "Permitted Liens"):
(a) Liens existing on in connection with Permitted Transactions (as defined in the date of this Agreement and set forth on Schedule 6.08Revolving Credit Agreement);
(b) Liens for taxes, assessments or similar charges, incurred current Taxes (as defined in the ordinary course of business that are Revolving Credit Agreement) not yet due and payable delinquent or that are for Taxes being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are being maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made Liens shown on Schedule 9.2 of the Revolving Credit Agreement on the Closing Date (as defined in the ordinary course Revolving Credit Agreement) or any similar schedule in the proposed $2,500,000,000 revolving credit agreement of business to secure payment the Guarantor; provided that Bank of workers’ compensation, to participate in any fund America National Trust and Savings Association is the lead agent in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAtherewith;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: in connection with worker's compensation, unemployment insurance or other forms of governmental insurance or benefits or to secure performance of tenders, statutory obligations, leases and contracts (1other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety or appeal bonds;
(e) Liens of mechanics, carriers, and materialmen and other like Liens arising in the ordinary course of business in respect of obligations which are not overdue for a period of more than thirty (30) days; delinquent or (2) which are being contested diligently in good faith pursuant to and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with respect thereto are maintained on the books of the applicable PersonGAAP;
(ef) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred Liens arising in the ordinary course of businessbusiness for sums being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP, or for sums not due, and in either case not involving any deposits or advances for borrowed money or the deferred purchase price of property or services;
(fg) any Lien arising out Liens on real estate to the extent real estate Investments (as defined in the Revolving Credit Agreement) are permitted by Section 9.10(e)(iii) of the refinancingRevolving Credit Agreement;
(h) Liens in favor of the trustee on sums required to be deposited with the trustee under the Indentures (as defined in the Revolving Credit Agreement);
(i) If Section 9.1(II) of the Revolving Credit Agreement is then in effect, extension, renewal or refunding of any Debt secured by any Lien Liens on indebtedness permitted by Section 9.1(II)(o) of the Revolving Credit Agreement;
(j) If Section 9.1(II) of the Revolving Credit Agreement is then in effect, Liens on assets of Guarantor or any of its Subsidiaries and which are not otherwise permitted to be incurred pursuant to the foregoing clauses (a) through - (ei) securing indebtedness permitted by Section 9.1(II)(p) of the Revolving Credit Agreement; provided, however, that the aggregate fair market value of the property and other assets subject to any such Liens, calculated at the time such Liens are incurred, shall not exceed three and six-tenths percent (3.6%) of the Total Shareholders' Equity (as defined in the Revolving Credit Agreement) of Guarantor; and
(k) If Section 9.1(I) of the Revolving Credit Agreement is then in effect, Liens on assets of Guarantor or any of its Subsidiaries and which are not otherwise permitted to be incurred pursuant to the foregoing clauses (a) - (h) securing indebtedness not prohibited by Section 9.1(I) of the Revolving Credit Agreement; provided, however, that the aggregate fair market value of the property and other assets subject -16- to any such Liens, calculated at the time such Liens are incurred, shall not exceed twelve percent (12%) of Total Shareholders' Equity of Guarantor. Notwithstanding the foregoing, if Section 9.2 of the Revolving Credit Agreement (or any successor section thereto) or any definitions set forth or used therein are amended or modified in accordance with the terms of the Revolving Credit Agreement either as the result of an amendment or modification to such section in the Revolving Credit Agreement or Guarantor's execution and delivery of a new credit facility in replacement, restatement or substitution for the Revolving Credit Agreement, this SectionSection 4.4 shall be deemed to be amended and modified to the extent set forth in the Revolving Credit Agreement (as amended or modified) or any new credit facility entered into in replacement, restatement or substitution for the Revolving Credit Agreement; provided that (ia) Bank of America National Trust and Savings Association is the lead agent with respect to such Debt is not secured by new or replacement credit facility and Banks constituting the required number of Banks under the Credit Agreement (or any additional assetsreplacement thereof) to consent to any such changes are lenders under such new or replacement credit facility or (b)(i) no Default or Event of Default exists under the Credit Agreement, (ii) the amount secured Required Banks have determined, in their reasonable discretion, that any proposed amendment or benefited thereby is modification to this Section 4.4 will not increased except as contemplated by Section 6.22(b)in any way violate, contravene or conflict with Regulation U or Regulation G, (iii) if requested by the direct or any contingent obligor with respect thereto is not changedAdministrative Agent, and (iv) any renewal or extension the Banks shall have received an opinion of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided counsel reasonably satisfactory to the Administrative Agent prior and its counsel to the date hereof effect that any such proposed amendment or modification to this Section 4.4 will not in any way violate, contravene or conflict with Regulation U or Regulation G and not objected to addressing such other legal matters as reasonably requested by the Administrative Agent prior to Agent, (iv) upon the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds request of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than , the property financed by such Debt Banks shall have received a certificate of the chief financial officer or a vice president with responsibility for or knowledge of financial matters of the Guarantor setting forth a calculation of the Collateral Ratio and (iie) without limiting anything contained in this Section 4.4, if Guarantor shall grant a Lien with respect to any of ▇▇▇ ▇▇▇▇▇▇ to any third party not otherwise permitted by clauses (a)-(l) above, the Debt Banks shall be equally and ratably secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating with respect to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000assets.
Appears in 1 contract
Sources: Guaranty (Conseco Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08Permitted Encumbrances;
(b) any Liens for taxes, assessments on any property or similar charges, incurred in assets of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Subsidiary existing on the books of the applicable Person in accordance with GAAPClosing Date set forth on Schedule 7.2;
(c) pledges purchase money Liens upon or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions fixed or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assetsLien attaches to such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction thereof; (ii) the amount secured or benefited thereby is such Lien does not increased except as contemplated by Section 6.22(b), extend to any other asset; and (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market value, whichever is lower, improving such fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the property being acquired Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(le) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default Indebtedness permitted under Section 8.01(j)7.1;
(f) Liens or pledges of securities of the Borrower or any Subsidiary to governmental agencies pursuant to the Borrower’s or any Subsidiary’s insurance program;
(g) Rights reserved or vested in governmental authority which do not materially impair the use of such property;
(h) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (g) of this Section; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(i) Liens arising under that certain Contingent Mortgage and Security Agreement dated as of May 18, 2012, from Lake Louisa, LLC, a Florida limited liability company and a Subsidiary of Borrower, in favor of Cemex Construction Materials, LLC, a Delaware limited liability company, in connection with a Mining Lease dated May 18, 2012, related to certain real property located in Lake County, Florida, as more specifically described in such mortgage; and
(mj) other Liens affecting property on improved commercial real properties in connection with an financing thereof, provided, however, that in no event shall the Borrower or any of its Subsidiaries create, incur, assume or suffer to exist any Lien on any of their respective aggregate fair value not to exceed $5,000,000mining properties owned as of the Closing Date, as described on Exhibit 7.1(j), except as otherwise provided hereunder.
Appears in 1 contract
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:except for the following (collectively, “Permitted Liens”):
(a) Liens existing securing the Obligations and Liens in favor of the Collateral Agent pursuant to the Security Documents securing the “Obligations” (under and as defined in the Note Purchase Agreement as in effect on the date of this Agreement hereof) pari passu (and set forth on Schedule 6.08pursuant to the Intercreditor Agreement) with the Obligations;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided that (i) such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions Subsidiary and (ii) only Liens securing Indebtedness or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAobligations in excess of $250,000 as of the Closing Date are required to be disclosed on Schedule 7.2;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable PersonPermitted Senior Secured Debt;
(e) good faith pledges or deposits to secure Liens securing the performance Indebtedness permitted under Section 7.1(c) and/or Section 7.1(i) above; provided that such Liens shall not encumber any of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;Collateral; and
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this Section; provided that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (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 replacement is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as limited to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000originally encumbered thereby.”
Appears in 1 contract
Negative Pledge. No Loan Party nor The Borrower undertakes with the Lender that, so long as any Subsidiary of a Loan Party Commitment is in force or any monies or obligations are outstanding under this Agreement, it will create, assume not: create or suffer permit to exist subsist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, Encumbrance other than any Lien imposed Permitted Encumbrance over all or any part of its present or future undertaking assets rights or revenues; sell or otherwise dispose of any of its assets on terms whereby it is or may be leased to or acquired by ERISA;
it (d) Liens except for sale and lease-backs of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred any asset on normal arm's length commercial terms and in the ordinary normal course of business that: business) or sell or otherwise dispose of any of its receivables on recourse terms (1) are not overdue except for a period the discounting of more than thirty (30) days; bills or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred notes in the ordinary course of business;
), in any such case in circumstances where the transaction is entered into primarily as a method of raising finance or of financing the acquisition of an asset. Paragraph (f1) above shall not apply to any Lien arising out Encumbrance: created or outstanding with the prior written consent of the refinancingLender provided that, extension, renewal or refunding of any Debt secured by any Lien unless permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not other exception below, the aggregate principal amount secured by any additional assets, (ii) the amount secured or benefited thereby is such Encumbrance will not be increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension without further consent of the obligations secured or benefited thereby is permitted Lender; arising by Section 6.22(b);
(g) any Lien imposed operation of law and not as a result of a taking under any default or omission on the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities part of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use having regard to the custom in the operation relevant trade for settlement of accounts; arising under any retention of title arrangements entered into in the business ordinary course of trading and not entered into primarily for the purpose of securing any Financial Indebtedness; over goods or documents of title to goods arising in the ordinary course of documentary credit transactions; provided that simultaneously with the creation of such Encumbrance the obligations of the Borrower under this Agreement are equally and its Subsidiaries and rateably secured by a comparable Encumbrance on other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided assets acceptable to the Administrative Agent Lender in form and substance satisfactory to it; on assets acquired after the date of this Agreement provided that:
i) any such Encumbrance is in existence prior to such acquisition and is not created in contemplation of such acquisition; and the date hereof and amount secured by such Encumbrance does not objected exceed, at any time, the maximum amount secured or agreed to be secured by the Administrative Agent prior to the date hereof;
it (i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired accordance with the proceeds of original terms on which such Debt, and (iiEncumbrance was created) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not as at any time encumber any property other than the property financed by such Debt and (ii) the Debt 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 such Encumbrance is discharged within a period of 6 months after the acquisition or (lonly in the case of an acquisition of a body corporate) Liens where the terms of such Encumbrance do not permit repayment of the amount secured by such Encumbrance within such period, on the earliest date or dates permitted by the terms of such Encumbrance for such repayment; and no guarantee is given by the Borrower in respect of such Encumbrance or the amount secured by it; pursuant to any order of attachment distraint garnishee order or injunction restraining disposal of assets or similar legal process arising in connection with legal proceedings; securing judgments for Indebtedness incurred to refinance other indebtedness permitted to be secured under paragraphs (a) to (g) above inclusive and/or this paragraph (h), provided that the payment aggregate principal amount of money (or appeal or the Indebtedness secured by such Encumbrance is not increased and such Encumbrance does not extend to any assets other surety bonds relating than those which were subject to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000the Encumbrance securing the refinanced Indebtedness.
Appears in 1 contract
Sources: Loan Agreement
Negative Pledge. No Loan Party nor So long as any of the Bonds remains outstanding (as defined in the Trust Deed) the Issuer and the Guarantor will procure that no Relevant Indebtedness (as defined below) of the Issuer, the Guarantor, Yorkshire Electricity Group plc ("YEG") or any Distribution Subsidiary (as defined below) or of any other person and no guarantee by the Issuer, the Guarantor, YEG or any Distribution Subsidiary of any Relevant Indebtedness of any other person will be secured by a Loan Party will createmortgage, assume charge, lien, pledge or suffer to exist any Lien on any asset now owned other security interest (each a "Security Interest") upon, or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books to, any of the applicable Person in accordance with GAAP;
present or future business, undertaking, assets or revenues (cincluding any uncalled capital) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges Issuer, the Guarantor, YEG or deposits to secure any Distribution Subsidiary unless the performance of bidsIssuer and the Guarantor shall, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in before or at the ordinary course of business;
(f) any Lien arising out same time as the creation of the refinancingSecurity Interest, extension, renewal or refunding of take any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as all action necessary to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;ensure that:
(i) Liens securing all amounts payable by the Obligations created or arising Issuer under the Loan Documents;
(j) Liens securing Debt incurred Bonds, the Coupons and the Trust Deed, or by the Borrower or any Subsidiary in connection with any NMTC TransactionGuarantor under the Guarantee (as defined below), provided that (i) such Liens encumber only the assets acquired are secured equally and rateably with the proceeds Relevant Indebtedness or guarantee, as the case may be, by the Security Interest to the satisfaction of such Debt, and the Trustee; or
(ii) such Liens are subordinated to Liens securing other Security Interest or guarantee or other arrangement (whether or not including the Obligations giving of a Security Interest) is provided in a manner satisfactory to respect of all amounts payable by the Administrative Agent;
(k) Liens securing Debt permitted Issuer under Section 6.22(e); provided that the Bonds, the Coupons and the Trust Deed, or by the Guarantor under the Guarantee, either (i) as the Trustee shall in its absolute discretion deem not materially less beneficial to the interests of the Bondholders or (ii) as shall be approved by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders, save that the Issuer, the Guarantor, YEG or any Distribution Subsidiary may create or have outstanding a Security Interest in respect of any of its Relevant Indebtedness and/or any guarantees given by the Issuer, the Guarantor, YEG or any Distribution Subsidiary in respect of any Relevant Indebtedness of any other person (without the obligation to provide a Security Interest or guarantee or other arrangement in respect of the Bonds, the Coupons and the Trust Deed as aforesaid) where such Liens do Relevant Indebtedness has an initial maturity falling not earlier than 4th August, 2028 and is of a maximum aggregate amount outstanding at any time encumber any property other than not exceeding the property financed by such Debt greater of (pound)200,000,000 and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, 20 per cent. of the property being acquired on Capital and Reserves (as defined below). For the date purposes of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.these Terms and Conditions:
Appears in 1 contract
Sources: First Supplemental Trust Deed (Midamerican Energy Holdings Co /New/)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of their respective assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on created in favor of the date Administrative Agent for the benefit of this Agreement and set forth on Schedule 6.08the Lenders pursuant to the Loan Documents;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges or deposits made a Lien securing a Hedging Agreement in the ordinary course favor of business to secure payment of workers’ compensationa current Lender, to participate in any fund entered into in connection with workers’ compensationinterest rate risks with respect to this Agreement, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAwhich ranks pari passu with the Security Documents;
(d) any Liens on any property or asset of mechanics, materialmen, warehousemen, carriers the Borrower or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Subsidiary existing on the books Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of the applicable PersonBorrower or any Subsidiary;
(e) good faith pledges purchase money Liens upon or deposits in any fixed or capital assets to secure the performance purchase price or the cost of bidssuch fixed or capital assets or to secure Indebtedness allowable under Section 7.1 incurred solely for the purpose of financing the acquisition of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, trade contracts and leases that (other than Debti) such Lien secures Indebtedness permitted by Section 7.1(f), statutory obligations, surety (ii) such Lien attaches to such asset concurrently or within 90 days after the acquisition thereof; (iii) such Lien does not extend to any other asset; and appeal bonds, performance bonds and other obligations (iv) the Indebtedness secured thereby does not exceed the cost of a like nature (other than Debt) incurred in the ordinary course of businessacquiring such fixed or capital assets;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) existing on any asset of any Person at the time such Debt is not secured by any additional assetsPerson becomes a Subsidiary of the Borrower, (ii) existing on any asset of any Person at the amount secured time such Person is merged with or benefited thereby is not increased except as contemplated by Section 6.22(b), into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the direct acquisition thereof by the Borrower or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and any such Lien secures only those obligations secured which it secures on the date that such Person becomes a Subsidiary or benefited thereby is permitted by Section 6.22(b)the date of such merger or the date of such acquisition;
(g) any Lien imposed as a result on the assets of a taking under the exercise Foreign Subsidiary securing Indebtedness of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any a Foreign Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted allowable under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j7.1(g); and
(mh) other Liens affecting property with an aggregate fair value extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (g) of this Section; provided, that the principal amount of theIndebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to exceed $5,000,000the assets originally encumbered thereby.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (American Healthways Inc)
Negative Pledge. No Loan Party nor any Subsidiary The Borrower shall not, without first complying with the requirements of a Loan Party will Section 9.1, directly or indirectly create, incur, assume or suffer permit to exist any Lien lien, mortgage, pledge, security interest, charge or encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any other agreement to give any security interest) on or with respect to any asset now owned or hereafter acquired by itof the Excepted Property (other than the Excepted Property described in paragraph P of the definition of Excepted Property, exceptwhich property shall not be subject to this Section 6.9) except for:
(a) Liens existing on Permitted Exceptions (other than the date Permitted Exception described in paragraph Y of this Agreement and set forth on Schedule 6.08the definition of Permitted Exceptions);
(b) Liens for taxesas to the Excepted Property described in paragraphs B through E, assessments or similar chargesinclusive, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books paragraph K of the applicable Person definition of Excepted Property, liens, mortgages, pledges, security interests, charges and encumbrances in accordance connection with GAAPpurchase money, construction or acquisition indebtedness (or renewals or extensions thereof) that encumber only the asset or assets so purchased, constructed or acquired or property improved through such purchase, construction or acquisition, and the proceeds upon a sale, transfer or exchange thereof;
(c) pledges liens, mortgages, pledges, security interests, charges and encumbrances (i) for the benefit of all Holders of the Obligations issued under the Indenture, (ii) in connection with any bond or deposits made similar fund established by the Borrower with respect to any debt securities, the interest on which is excludable from gross income of the holder thereof pursuant to the Internal Revenue Code, as amended, to the extent of amounts deposited in such funds in the ordinary course of business to secure payment of workers’ compensationmake regularly scheduled payments on such debt securities, to participate in any fund or (iii) in connection with workers’ compensationany debt service or similar fund established by the Borrower for the payment of principal or interest on debt securities, unemployment insurancethe interest on which is excludable from gross income of the holder thereof pursuant to the Internal Revenue Code, old-age pensions as amended, if such fund is funded solely from the proceeds of the issuance of such debt securities (or funded in connection with the refinancing of other social security programs, or for other similar purposes, other than any Lien imposed debt by ERISAsuch debt securities);
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings pledges, security interests, charges and encumbrances with respect to which adequate reserves with respect thereto are maintained on the books any interest, debt or equity, of the applicable PersonBorrower in the National Rural Utilities Cooperative Finance Corporation or CoBank, ACB purchased or otherwise acquired by the Borrower in connection with membership in any such entity or any borrowing from any such entity;
(e) good faith pledges liens, pledges, security interests, charges and encumbrances arising in connection with any legal or deposits to secure economic defeasance of indebtedness, unless the performance funding of bids, trade contracts the defeasance is during an Increased Oversight Period or a Highest Oversight Period and leases more than twenty percent (20%) of the defeasance is funded other than Debtwith the proceeds of the issuance of new indebtedness (in which case the Borrower shall first comply with the requirements of Section 9.1 before permitting or creating any such lien, pledge, security interest, charge or encumbrance), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) liens, pledges, security interests, charges and encumbrances with respect to deposit, brokerage, commodity and other similar accounts to the extent such liens, pledges, security interests, charges and encumbrances do not secure indebtedness for borrowed money other than indebtedness incurred in connection with acquiring securities or other investments deposited in any Lien arising out of the refinancingsuch account; or
(g) liens, extensionpledges, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that security interests, charges and encumbrances on (i) such Debt is not secured by any additional assetscash, (ii) securities or deposits issued, guaranteed or fully insured as to payment by the amount secured Government or benefited thereby is not increased except as contemplated by Section 6.22(b)any agency thereof, or (iii) Investments of the direct or type permitted under Section 6.5 hereof to the extent required to be provided by the Borrower as collateral for any contingent obligor with respect thereto is not changed, and obligation of the Borrower under (ivA) any renewal agreement or extension other instrument relating to any rate, index or price swap, basis swap, forward rate, index or price transaction, commodity swap, commodity option, cap, collar or floor transaction, or other similar transaction entered into by the Borrower for the purpose of directly mitigating risks associated with interest expense, fuel or other commodity expense, (B) any power purchase or sale obligation, or (C) any other similar obligation, commitment or liability of the obligations secured Borrower, in each case of subclauses (A) through (C), arising in connection with the Borrower’s business and properties and not entered into for the purpose of speculation; provided, however, that at any time the amount of such cash, securities, deposits and Investments subject to any lien, pledge, security interest, charge or benefited thereby is permitted by Section 6.22(b);
encumbrance under this clause (g) any Lien imposed as a result of a taking under in the exercise aggregate may not exceed ten percent (10%) of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Borrower’s Total Utility Plant.
Appears in 1 contract
Negative Pledge. No Holdings and the Borrower will not, and will not permit any Restricted Subsidiary or Intermediate Parent to enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by itacquired, exceptfor the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to:
(a) Liens existing on restrictions and conditions imposed by (i) Requirements of Law, (ii) any Loan Document, (iii) the date Senior Notes, (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Section 6.01(a)(xxiv) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided that with respect to Indebtedness referenced in (A) clauses (iv) and (vi) above, such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of this Agreement Junior Financing, are market terms at the time of issuance and set forth on Schedule 6.08(B) clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
(b) Liens for taxescustomary restrictions and conditions existing on the Effective Date and any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing by such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any Restricted Subsidiary;
(g) (restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of Junior Financing, are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its Subsidiaries);
(h) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable (or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained other restrictions on the books of the applicable Person in accordance with GAAPcash or deposits constituting Permitted Encumbrances);
(ci) pledges restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or deposits made in replacement thereof, except to the ordinary course extent any such amendment, modification or replacement expands the scope of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions such restriction or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAcondition;
(dj) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred customary provisions in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds joint venture agreements and other obligations of a like nature (other than Debt) incurred similar agreements applicable to joint ventures permitted by Section 6.04 and applicable solely to such joint venture and entered into in the ordinary course of business;; and
(fk) any Lien arising out of customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided Borrower has determined in good faith that (i) such Debt is net worth provisions could not secured by any additional assets, (ii) reasonably be expected to impair the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities ability of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair to meet their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000ongoing obligations.
Appears in 1 contract
Negative Pledge. No Loan Party The Borrower will not nor will it permit any Subsidiary of a Loan Party will its Subsidiaries to create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) (i) Liens securing up to $12.6 million of the Tranche B Term Loan under the Term Loan Agreement, (ii) Liens created by and existing on under the date Financing Documents hereunder, and (iii) other mortgage Liens to the extent not prohibited, both before and after giving effect thereto, by the provisions of this Agreement Sections 5.21 (Consolidated Senior Secured Debt to Consolidated Total Capital Ratio) and set forth on Schedule 6.08Section 5.22 (Consolidated Unencumbered Realty to Consolidated Unsecured Debt Ratio);
(b) carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's, statutory banker's or other like Liens for taxes, assessments or similar charges, incurred arising in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; days or (2) which are being contested diligently in good faith pursuant to by appropriate proceedings;
(c) Liens for taxes, assessments or other governmental charges not yet due or which are being contested in good faith and by appropriate proceedings and with respect to for which adequate reserves are taken in accordance with generally accepted accounting principals;
(d) Liens imposed by law on pledges or deposits in connection with workmen's compensation, unemployment insurance and other social security legislation which do not interfere with or adversely affect in any material respect thereto are maintained on the books ordinary conduct of the applicable Personbusiness of the Borrower or any of its Subsidiaries;
(e) good faith pledges or deposits to secure the performance of bids, tenders, trade or government contracts and leases (other than Debtfor borrowed money), leases, licenses, statutory obligations, surety and appeal bonds (other than in relation to judgments), performance bonds, performance bonds reserves for capital improvements and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) easements, rights-of-way, zoning and similar restrictions and other encumbrances or title defects incurred, or leases or subleases granted to others which are in existence as of the date hereof, or if not in existence as of the date hereof, do not interfere with or adversely affect in any material respect the ordinary conduct of the business, or detract from the value of the property, of the Borrower or any of its Subsidiaries;
(g) Liens securing reimbursement obligations with respect to trade letters of credit issued in the ordinary course of business; provided that such Liens only attach to the assets being acquired with the proceeds of such letters of credit;
(h) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien, to the extent such Lien is permitted by any of the foregoing clauses (a) through (e) of this Section; provided that (i) such Debt is not increased and is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens on properties securing security deposits of tenants, provided that the Obligations created or arising under the Loan Documents;aggregate amount of such security deposits secured by such Liens shall not exceed 5% of Consolidated Total Capital at any time outstanding; and
(j) Liens securing Debt incurred by the Borrower or of any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory or Specified Affiliate owing to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at Borrower, any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost Subsidiary or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Specified Affiliate.
Appears in 1 contract
Negative Pledge. No Loan Party Neither the Company nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itany of them, except:
(a) Liens any Lien existing on March 4, 2005 and disclosed in the date financial statements referred to in Section 12.04 of this the Existing Credit Agreement and or set forth on in Schedule 6.0813.04 of the Existing Credit Agreement, and any extension, renewal or replacement of any such Lien so long as the principal amount secured thereby is not increased and the scope of the property subject to such Lien is not extended;
(b) Liens imposed by law for taxes, assessments or similar charges, incurred in the ordinary course charges of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to any Governmental Authority for claims which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty 30 days, or to the extent that such Lien is being contested in good faith by appropriate proceedings and adequate reserves in accordance with GAAP are being maintained therefor, provided that no notice of Lien has been filed or recorded under the Code;
(30c) days; statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law or (2) created in the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested diligently in good faith pursuant by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(d) Liens (other than any Lien imposed under ERISA) consisting of pledges or deposits in the ordinary course of business (i) required in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) 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 to appropriate proceedings and secure obligations with respect to which adequate reserves with respect thereto are casualty or liability insurance maintained on by the books Company or any of the applicable Personits Subsidiaries;
(e) good faith pledges Liens on property of the Company or deposits to secure any Subsidiary securing (i) the non-delinquent performance of bids, trade contracts and leases (other than Debtfor borrowed money), leases or statutory obligations, (ii) surety and bonds (excluding appeal bonds, performance bonds and other bonds posted in connection with court proceedings or judgments) and (iii) other non-delinquent obligations of a like nature (other than Debtincluding those to secure health, safety and environmental obligations) in each case incurred in the ordinary course of business;
(f) Liens (i) consisting of judgment or judicial attachment liens and Liens securing contingent obligations on appeal bonds and other bonds posted in connection with court proceedings or judgments, provided that (x) in the case of judgment and judicial attachment liens, the enforcement of such Liens is effectively stayed, and (y) the aggregate amount secured by all such Liens (excluding any Lien arising out related to the Horizon Litigation) does not at any time exceed $10,000,000; and (ii) securing appeal bonds posted in connection with the Horizon Litigation to the extent that the sum of (x) the aggregate amount of such appeal bonds and (y) the aggregate amount of all letters of credit (including any Letter of Credit) issued for the benefit of the refinancingcourt (or any instrumentality thereof) having jurisdiction over the Horizon Litigation does not exceed $200,000,000;.
(g) easements, extensionrights-of-way, renewal restrictions, encroachments, protrusions and other similar encumbrances on real property which in the aggregate do not materially detract from the value of such property or refunding materially interfere with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(h) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any Debt secured by any Lien permitted by any statutory or common law provision relating to banker’s liens, rights of clauses (a) through (e) of this Sectionset-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such Debt deposit account is not secured a dedicated cash collateral account and is not subject to restrictions against access by any additional assets, the Company or the applicable Subsidiary in excess of those set forth by regulations promulgated by the FRB and (ii) the amount secured or benefited thereby such deposit account is not increased except as contemplated intended by Section 6.22(b), (iii) the direct Company 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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Subsidiary to provide collateral to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsdepository institution;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary arising in connection with any NMTC Transaction, Securitization Transactions; provided that the aggregate investment or claim held at any time by all purchasers, assignees or other transferees of (ior of interests in) such Liens encumber only receivables and other rights to payment in all Securitization Transactions shall not at any time exceed in the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agentaggregate $200,000,000;
(k) Liens on property of any Foreign Subsidiary securing Debt of such Foreign Subsidiary that is permitted under Section 6.22(e7.06;
(l) any Lien existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof (other than any Lien on the Equity Interest of any Person that becomes a Subsidiary); provided that (i) such Liens do Lien was not at any time encumber any property other than the property financed by created in contemplation of such Debt and acquisition or such Person becoming a Subsidiary; (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisitionpermitted under Section 7.06;
(lm) Liens securing judgments arising out of the conditional sale, title retention, consignment or similar arrangements for the payment sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(n) Liens solely on c▇▇▇ ▇▇▇▇▇▇▇ money (deposits made by the Company or appeal any Subsidiary in connection with any letter of intent or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j)purchase agreement permitted hereunder; and
(mo) in addition to Liens permitted by subsections (a) through (n) above, other Liens affecting property with an aggregate fair value securing Debt in a Dollar Equivalent amount not to exceed $5,000,000exceeding 12.5% of Consolidated Shareholders’ Equity.
Appears in 1 contract
Sources: Term Loan Agreement (Pentair Inc)
Negative Pledge. No Loan Party nor Such Borrower will not pledge or otherwise subject to any Subsidiary lien any property or assets of a Loan Party such Borrower unless the Loans and the Obligations of such Borrower under this Agreement are secured by such lien equally and ratably with all other obligations secured thereby so long as such other obligations shall be so secured; provided, however, that such covenant will create, assume or suffer not apply to exist any Lien on any asset now owned or hereafter acquired by it, exceptliens securing obligations which do not in the aggregate at anyone time outstanding exceed 20% of Net Tangible Assets (as defined below) of such Borrower and it Consolidated Subsidiaries and also will not apply to:
(a) Liens existing on the date pledge of this Agreement any assets of such Borrower to secure any financing by such Borrower of the exporting of goods to or between, or the marketing thereof in, jurisdictions other than the United States and set forth on Schedule 6.08Puerto Rico in connection with which such Borrower reserves the right, in accordance with customary and established banking practice, to deposit, or otherwise subject to a lien, cash, securities or receivables, for the purpose of securing banking 37 accommodations or as the basis for the issuance of bankers' acceptances or in aid of other similar borrowing arrangements;
(b) Liens for taxes, assessments or similar charges, incurred the pledge of receivables of such Borrower payable in currencies other than United States dollars to secure borrowings in jurisdictions other than the ordinary course of business that are not yet due United States and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPuerto Rico;
(c) pledges or deposits made any deposit of assets of such Borrower in the ordinary course favor of business any governmental bodies to secure payment of workers’ compensationprogress, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions advance or other social security programs, payments under a contract or for other similar purposes, other than any Lien imposed by ERISAstatute;
(d) Liens any lien or charge on any property of mechanicssuch Borrower, materialmentangible or intangible, warehousemenreal or personal, carriers existing at the time of acquisition or other like liens, securing obligations incurred in construction of such property (including acquisition through merger or consolidation) or given to secure the ordinary course payment of business that: (1) are not overdue for a period of more than thirty (30) days; all or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books any part of the applicable Personpurchase or construction price thereof or to secure any indebtedness incurred prior to, at the time of, or within one year after, the acquisition or completion of construction thereof for the purpose of financing all or any part of the purchase or construction price thereof;
(e) good faith pledges bankers' liens or deposits to secure rights of offset;
(f) any lien securing the performance of bidsany contract or undertaking not directly or indirectly in connection with the borrowing of money, trade contracts obtaining of advances or credit or the securing of debt, if made and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred continuing in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body lien to secure nonrecourse obligations in connection with such Borrower's engaging in leveraged or by any Person acting under governmental authoritysingle-investor lease transactions;
(h) minor survey exceptions any lien to secure payment obligations with respect to (x) rate swap transactions, swap options, basis swaps, forward rate transactions, commodity swaps, commodity options, equity or minor encumbrancesequity index swaps, easements equity or reservationsequity index options, bond options, interest rate options, foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, credit protection transactions, credit swaps, credit default swaps, credit default options, total return swaps, credit spread transactions, repurchase transactions, reverse repurchase transactions, buy/sell-back transactions, securities lending transactions, weather index transactions, or rights forward purchases or sales of others for rights-of-waya security, utilities and commodity or other similar purposesfinancial instrument or interest (including any option with respect to any of these transactions), or zoning or other restrictions as to the use of real properties, which (y) transactions that are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;those described above; and
(i) Liens securing any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any lien, charge or pledge referred to in the Obligations created or arising under foregoing clauses (a) to (h), inclusive, of this Section 6.5; provided, however, that the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or amount of any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt all obligations and (ii) the Debt indebtedness secured thereby does shall not exceed the cost amount thereof so secured immediately prior to the time of such extension, renewal or fair market valuereplacement and that such extension, whichever is lower, renewal or replacement shall be limited to all or a part of the property being acquired which secured the charge or lien so extended, renewed or replaced (plus improvements on the date of acquisition;
(l) 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(jproperty); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Toyota Motor Credit Corp)
Negative Pledge. No Loan Party Borrower shall, nor shall any Subsidiary Borrower permit any of a Loan Party will createits Subsidiaries to, assume enter into or suffer to exist exist, any agreement prohibiting or conditioning the creation or assumption of any Lien on upon any asset now owned of its property or hereafter acquired by it, assets except:
(a) Liens negative pledges existing on property of LS&Co and its Subsidiaries on the date of this Agreement Closing Date and set forth listed on Schedule 6.08SCHEDULE 7.16;
(b) Liens for taxes, assessments or similar charges, incurred negative pledges in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books favor of the applicable Person in accordance with GAAPAgent and the Lenders;
(c) negative pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided purchase money Debt permitted under SECTION 7.18(C)(III) solely to the extent that (i) the agreement or instrument governing such Liens encumber only Debt prohibits a Lien on the assets property acquired with the proceeds of such Debt;
(d) negative pledges in connection with any Capital Lease permitted under SECTION 7.18(C)(XVIII) solely to the extent that such Capital Lease prohibits a Lien on the property subject thereto;
(e) negative pledges on the property subject to Equipment Financing Transactions permitted under SECTION 7.18(C)(VIII) and Real Estate Financing Transactions permitted under SECTION 7.18(C)(VII), and negative pledges on the property subject to Liens permitted under SECTION 7.16;
(f) negative pledges on IP Rights licensed from third parties, provided such negative pledges expressly permit Liens on such IP Rights in favor of the Agent and in favor of the collateral agent for the Term Loan Lenders;
(g) negative pledges with respect to property of LS&Co and its Subsidiaries contained in documentation for any Capital Markets Transaction (provided such negative pledges expressly permit Liens in favor of the Agent and in favor of the agent for the Term Loan Lenders) on all assets of LS&Co and its Subsidiaries, and Liens on equipment subject to Equipment Financing Transactions, real property subject to Real Estate Financing Transactions, accounts receivable subject to Permitted Foreign Receivables Transactions, inventory subject to Foreign Inventory Transactions and property subject to any other Lien permitted under SECTION 7.16;
(h) negative pledges contained, as of the Closing Date, in the documentation for the Term Loan Facility or any replacement, extension or renewal thereof permitted under SECTION 7.27; PROVIDED that any negative pledge permitted pursuant to the immediately foregoing clause (ii) such Liens are subordinated to Liens securing shall in no case directly or indirectly prohibit the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, first priority Lien of the property being acquired Lenders on the date of acquisition;
(l) 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(j)assets; and
(mi) other Liens affecting negative pledges on property with an aggregate fair value not to exceed $5,000,000of Foreign Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Levi Strauss & Co)
Negative Pledge. No Loan Party nor Guarantor shall not, and shall not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:except for the following (collectively called "Permitted Liens"):
(a) Liens existing on in connection with Permitted Transactions (as defined in the date of this Agreement and set forth on Schedule 6.08Revolving Credit Agreement);
(b) Liens for taxes, assessments or similar charges, incurred current Taxes (as defined in the ordinary course of business that are Revolving Credit Agreement) not yet due and payable delinquent or that are for Taxes being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are being maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made Liens shown on Schedule 9.2 of the Revolving Credit Agreement on the Closing Date (as defined in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISARevolving Credit Agreement);
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: in connection with worker's compensation, unemployment insurance or other forms of governmental insurance or benefits or to secure performance of tenders, statutory obligations, leases and contracts (1other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety or appeal bonds;
(e) Liens of mechanics, carriers, and materialmen and other like Liens arising in the ordinary course of business in respect of obligations which are not overdue for a period of more than thirty (30) days; delinquent or (2) which are being contested diligently in good faith pursuant to and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with respect thereto are maintained on the books of the applicable PersonGAAP;
(ef) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred Liens arising in the ordinary course of businessbusiness for sums being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP, or for sums not due, and in either case not involving any deposits or advances for borrowed money or the deferred purchase price of property or services;
(fg) any Lien arising out Liens on real estate to the extent real estate Investments (as defined in the Revolving Credit Agreement) are permitted by Section 9.10(e)(iii) of the refinancingRevolving Credit Agreement;
(h) Liens in favor of the trustee on sums required to be deposited with the trustee under the Indentures (as defined in the Revolving Credit Agreement);
(i) If Section 9.1(II) of the Revolving Credit Agreement is then in effect, extension, renewal or refunding of any Debt secured by any Lien Liens on indebtedness permitted by Section 9.1(II)(o) of the Revolving Credit Agreement;
(j) If Section 9.1(II) of the Revolving Credit Agreement is then in effect, Liens on assets of Guarantor or any of its Subsidiaries and which are not otherwise permitted to be incurred pursuant to the foregoing clauses (a) through - (ei) securing indebtedness permitted by Section 9.1(II)(p) of the Revolving Credit Agreement; provided, however, that the aggregate fair market value of the property and other assets subject to any such Liens, calculated at the time such Liens are incurred, shall not exceed three and six- tenths percent (3.6%) of the Total Shareholders' Equity of Guarantor; and
(k) If Section 9.1(I) of the Revolving Credit Agreement is then in effect, Liens on assets of Guarantor or any of its Subsidiaries and which are not otherwise permitted to be incurred pursuant to the foregoing clauses (a) - (h) securing indebtedness not prohibited by Section 9.1(I) of the Revolving Credit Agreement; provided, however, that the aggregate fair market value of the property and other assets subject to any such Liens, calculated at the time such Liens are incurred, shall not exceed twelve percent (12%) of Total Shareholders' Equity (as defined in the Revolving Credit Agreement) of Guarantor. Notwithstanding the foregoing, if Section 9.2 of the Revolving Credit Agreement (or any successor section thereto) or any definitions set forth or used therein are amended or modified in accordance with the terms of the Revolving Credit Agreement either as the result of an amendment or modification to such section in the Revolving Credit Agreement or Guarantor's execution and delivery of a new credit facility in replacement, restatement or substitution for the Revolving Credit Agreement, this SectionSection 4.4 shall be deemed to be amended and modified to the extent set forth in the Revolving Credit Agreement (as amended or modified) or any new credit facility entered into in replacement, restatement or substitution for the Revolving Credit Agreement; provided that (i) such Debt is not secured by any additional assetsno Default or Event of Default exists under the Restated Credit Agreement, (ii) the amount secured Required Banks have determined, in their sole and absolute discretion, that any proposed amendment or benefited thereby is not increased except as contemplated by modification to this Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do 4.4 will not in any event materially impair their use in way violate, contravene or conflict with Regulation U or Regulation G, (c) if requested by the operation Administrative Agent, the Banks shall have received an opinion of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided counsel satisfactory to the Administrative Agent prior and its counsel to the date hereof effect that any such proposed amendment or modification to this Section 4.4 will not in any way violate, contravene or conflict with Regulation U or Regulation G and not objected to addressing such other legal matters as reasonably requested by the Administrative Agent prior to Agent, (d) upon the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds request of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than , the property financed by such Debt Banks shall have received a certificate of the chief financial officer or a vice president with responsibility for or knowledge of financial matters of the Guarantor setting forth a calculation of the Collateral Ratio and (iie) without limiting anything contained in this Section 4.4, if Guarantor shall grant a Lien with respect t▇ ▇▇▇ ▇▇ ▇▇▇ assets to any third party not otherwise permitted by clauses (a)-(l) above, the Debt Banks shall be equally and ratably secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating with respect to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000assets.
Appears in 1 contract
Sources: Guaranty (Hilbert Stephen C)
Negative Pledge. No Loan Party nor The Borrower shall not, and shall not permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itit (or any income therefrom or any right to receive income therefrom), except:
(a) Liens existing on created pursuant to the date of this Agreement and set forth on Schedule 6.08Collateral Documents;
(b) Liens for taxes, assessments any Lien on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Restricted Subsidiary existing on the books of the applicable Person Closing Date and set forth in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this SectionSchedule 7.02; provided that (i) such Debt is Lien shall not secured by apply to any additional assets, other property or asset of the Borrower or any Restricted Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b)Closing Date;
(gc) any Lien imposed as existing on any asset prior to the acquisition thereof by the Borrower or a result Restricted Subsidiary; provided that such Lien was not created in contemplation of a taking under the exercise such event and does not extend to any other property of the power of eminent domain by Borrower or any governmental body or by any Person acting under governmental authorityRestricted Subsidiary;
(hd) minor survey exceptions any Lien existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary or minor encumbrances, easements merges into the Borrower or reservations, or rights any of others for rights-of-way, utilities its Restricted Subsidiaries in connection with an Acquisition; provided that such Lien was not created in contemplation of such event and does not extend to any other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct property of the activities Borrower or any Restricted Subsidiary;
(e) Liens upon the assets of the Borrower and its Restricted Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided subject to Capital Lease Obligations to the Administrative Agent prior to extent incurred or assumed after the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary Closing Date in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under reliance on Section 6.22(e7.01(a)(iii); provided that (i) such Liens do only serve to secure the payment of Indebtedness arising under such Capital Lease Obligation, (ii) the Lien encumbering the asset giving rise to the Capital Lease Obligation does not at any time encumber any property other asset of the Borrower or any Restricted Subsidiary and (iii) the aggregate outstanding principal amount of all Indebtedness secured pursuant to this clause (e) and clause (f) after the Closing Date shall not exceed the greater of $75,000,000 and 1.75% of Consolidated Total Assets determined as of the date of the most recent creation of a Lien in reliance on this clause (e);
(f) any Lien on any asset securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring or constructing such asset; provided that (i) such Lien attaches to such asset concurrently with or within 180 days after the acquisition or completion of construction thereof and attaches to no asset other than the property such asset so financed by such Debt and (ii) the Debt aggregate outstanding principal amount of all Indebtedness secured thereby does pursuant to clause (e) and this clause (f) after the Closing Date shall not exceed the cost or fair market value, whichever is lower, greater of the property being acquired on $75,000,000 and 1.75% of Consolidated Total Assets determined as of the date of acquisitionthe most recent creation of a Lien in reliance on this clause (f);
(g) Liens securing Indebtedness of the Borrower or a Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that such Liens, if they are on Collateral, are subordinated to the Liens securing the Obligations on terms satisfactory to the Administrative Agent;
(h) any Lien arising out of any Permitted Refinancing; provided that the principal amount of such Indebtedness is not increased and such refinanced Indebtedness is not secured by any additional assets;
(i) Permitted Encumbrances;
(j) other Liens securing Indebtedness or other obligations in an aggregate amount not exceeding $25,000,000 at any time outstanding (none of which shall be secured by Liens on the Collateral);
(k) so long as the same is subject to the ABL Intercreditor Agreement in the capacity of ABL Obligations, Liens on Collateral securing Indebtedness incurred pursuant to Section 7.01(a)(xiv) and any other “Secured Obligations” as defined in the ABL Facility;
(l) Liens securing judgments for any Permitted First Priority Refinancing Debt or any Permitted Second Priority Refinancing Debt;
(m) so long as the payment Borrower’s Senior Secured Leverage Ratio shall be equal to or less than 2.50:1.00 on a Pro Forma Basis (including the incurrence of money any Indebtedness under Section 7.01(a)(xvii) then being incurred))
(i) Liens placed upon the Equity Interests of any Restricted Subsidiary to secure Indebtedness incurred pursuant to Section 7.01(a)(xvii) in connection with the acquisition of such Restricted Subsidiary and (ii) Liens placed upon the assets of such Restricted Subsidiary or any of its Subsidiaries to secure Indebtedness (or appeal to secure a Guarantee of such Indebtedness), in either case incurred pursuant to Section 7.01(a)(xvii) in connection with the acquisition of such Restricted Subsidiary; provided that a Senior Representative of the Indebtedness being secured by such Lien shall have become a party to the applicable Intercreditor Agreement;
(n) the modification, replacement, extension or renewal of any Lien permitted by (b), (d), (e), (f) and (m) of this Section 7.02 upon or in the same assets theretofore subject to such Lien (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and proceeds and products thereof) or the Permitted Refinancing thereof or other surety bonds relating obligations secured thereby as and to such judgments) not constituting an Event of Default under the extent permitted by Section 8.01(j)7.01; and
(mo) other Liens affecting property deemed to exist by reason of (x) any encumbrance or restriction (including put and call arrangements) with an aggregate fair value not respect to exceed $5,000,000the Equity Interests of any joint venture or similar arrangement pursuant to any joint venture or similar agreement (including any Minority-Owned Affiliates) or (y) any encumbrance or restriction imposed under any contract for the sale by the Borrower or any of its Subsidiaries of the Equity Interests of any Subsidiary, or any business unit or division of the business or any Subsidiary permitted under this Agreement; provided that in each case such Liens shall extend only to the relevant Equity Interests.
Appears in 1 contract
Negative Pledge. No Loan Party nor The Borrower shall not, and shall not permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itit (or any income therefrom or any right to receive income therefrom), except:
(a) Liens existing on created pursuant to the date of this Agreement and set forth on Schedule 6.08Collateral Documents;
(b) Liens for taxes, assessments any Lien on any property or similar charges, incurred in asset of the ordinary course of business that are not yet due and payable Borrower or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained any Restricted Subsidiary existing on the books of the applicable Person Closing Date and set forth in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this SectionSchedule 7.02; provided that (i) such Debt is Lien shall not secured by apply to any additional assets, other property or asset of the Borrower or any Restricted Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b)Closing Date ;
(gc) any Lien imposed as existing on any asset prior to the acquisition thereof by the Borrower or a result Restricted Subsidiary; provided that such Lien was not created in contemplation of a taking under the exercise such event and does not extend to any other property of the power of eminent domain by Borrower or any governmental body or by any Person acting under governmental authorityRestricted Subsidiary;
(hd) minor survey exceptions any Lien existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary or minor encumbrances, easements merges into the Borrower or reservations, or rights any of others for rights-of-way, utilities its Restricted Subsidiaries in connection with an Acquisition; provided that such Lien was not created in contemplation of such event and does not extend to any other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct property of the activities Borrower or any Restricted Subsidiary;
(e) Liens upon the assets of the Borrower and its Restricted Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided subject to Capital Lease Obligations to the Administrative Agent prior to extent incurred or assumed after the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary Closing Date in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under reliance on Section 6.22(e7.01(a)(iii); provided that (i) such Liens do only serve to secure the payment of Indebtedness arising under such Capital Lease Obligation, (ii) the Lien encumbering the asset giving rise to the Capital Lease Obligation does not at any time encumber any property other asset of the Borrower or any Restricted Subsidiary and (iii) the aggregate outstanding principal amount of all Indebtedness secured pursuant to this clause (e) and clause (f) after the Closing Date shall not exceed the greater of $75,000,000 and 1.75% of Consolidated Total Assets determined as of the date of the most recent creation of a Lien in reliance on this clause (e);
(f) any Lien on any asset securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring or constructing such asset; provided that (i) such Lien attaches to such asset concurrently with or within 180 days after the acquisition or completion of construction thereof and attaches to no asset other than the property such asset so financed by such Debt and (ii) the Debt aggregate outstanding principal amount of all Indebtedness secured thereby does pursuant to clause (e) and this clause (f) after the Closing Date shall not exceed the cost or fair market value, whichever is lower, greater of the property being acquired on $75,000,000 and 1.75% of Consolidated Total Assets determined as of the date of acquisitionthe most recent creation of a Lien in reliance on this clause (f);
(g) Liens securing Indebtedness of the Borrower or a Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that such Liens, if they are on Collateral, are subordinated to the Liens securing the Obligations on terms satisfactory to the Administrative Agent;
(h) any Lien arising out of any Permitted Refinancing; provided that the principal amount of such Indebtedness is not increased and such refinanced Indebtedness is not secured by any additional assets;
(i) Permitted Encumbrances;
(j) other Liens securing Indebtedness or other obligations in an aggregate amount not exceeding $25,000,000 at any time outstanding; provided that any Indebtedness or other obligations secured by such other Liens on the Collateral (i) shall not exceed $5,000,000 at any time outstanding and (ii) shall either (A) be secured on a junior priority basis to the Liens on the Collateral securing the Secured Obligations or (B) cause the Borrowing Base to be reduced by the amount of the obligations secured by such Liens on the Collateral;
(k) so long as the same is subject to the Term Loan Intercreditor Agreement in the capacity of Fixed Asset Obligations, Liens on Collateral securing Indebtedness incurred pursuant to Section 7.01(a)(xiv);
(l) [Reserved];
(m) so long as the Borrower’s Senior Secured Leverage Ratio shall be equal to or less than 2.50:1.00 on a Pro Forma Basis (including the incurrence of any Indebtedness under Section 7.01(a)(xvii) then being incurred))
(i) Liens securing judgments for placed upon the payment Equity Interests of money any Restricted Subsidiary to secure Indebtedness incurred pursuant to Section 7.01(a)(xvii) in connection with the acquisition of such Restricted Subsidiary and (ii) Liens placed upon the assets of such Restricted Subsidiary or any of its Subsidiaries to secure Indebtedness (or appeal to secure a Guarantee of such Indebtedness), in either case incurred pursuant to Section 7.01(a)(xvii) in connection with the acquisition of such Restricted Subsidiary; provided that such Liens shall be subject to the Term Loan Intercreditor Agreement in the capacity of, or on terms substantially the same as are applicable to, Fixed Asset Obligations;
(n) the modification, replacement, extension or renewal of any Lien permitted by (b), (d), (e), (f) and (m) of this Section 7.02 upon or in the same assets theretofore subject to such Lien (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and proceeds and products thereof) or the Permitted Refinancing thereof or other surety bonds relating obligations secured thereby as and to such judgments) not constituting an Event of Default under the extent permitted by Section 8.01(j)7.01; and
(mo) other Liens affecting property deemed to exist by reason of (x) any encumbrance or restriction (including put and call arrangements) with an aggregate fair value not respect to exceed $5,000,000the Equity Interests of any joint venture or similar arrangement pursuant to any joint venture or similar agreement (including any Minority-Owned Affiliates) or (y) any encumbrance or restriction imposed under any contract for the sale by the Borrower or any of its Subsidiaries of the Equity Interests of any Subsidiary, or any business unit or division of the business or any Subsidiary permitted under this Agreement; provided that in each case such Liens shall extend only to the relevant Equity Interests.
Appears in 1 contract
Negative Pledge. No Loan Party As long as any portion of the Commitments remains outstanding or amounts are outstanding to any Lenders by the Borrower under the Credit Agreement, and subject to all the provisions of this Negative Pledge, the Borrower will not, nor will it permit any Restricted Subsidiary of a Loan Party will createto, assume create any mortgage, hypothecation, charge or suffer to exist any Lien other encumbrance on any asset now owned of its or hereafter acquired by ittheir property or assets, exceptpresent or future, to secure Indebtedness, unless at or prior thereto the maximum amount of the Total Syndicated Commitment then in effect is equally and rateably secured with such Indebtedness or, at the option of the Borrower, security in the form of other property having a Value equal to 150% of the principal amount of the Total Syndicated Commitment then in effect is extended to the Agent and the Lenders. The provisions of this Section 2.1 shall not apply to or operate to prevent:
(a) Liens existing on liens or other encumbrances, not related to the date borrowing of this Agreement and set forth on Schedule 6.08;
(b) Liens for taxes, assessments or similar chargesmoney, incurred or arising by operation of law or in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence incidental to the ownership of property or assets;
(b) pre-existing encumbrances on property or assets when acquired (including by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books way of the applicable Person in accordance with GAAPlease);
(c) pledges encumbrances or deposits made obligations to incur encumbrances (including under indentures, trust deeds and similar instruments) on property or assets of another Person existing at the time such other Person becomes a Subsidiary, or is liquidated or merged into, or amalgamated or consolidated with, the Borrower or a Subsidiary or at the time of the sale, lease or other disposition to the Borrower or a Subsidiary of all or substantially all of the properties and assets of such other Person, provided that such encumbrances were not incurred in anticipation of such other Person becoming a Subsidiary;
(d) encumbrances given by the Borrower or any of its Restricted Subsidiaries in compliance with contractual commitments in existence at the date hereof or entered into prior to a Restricted Subsidiary becoming a Restricted Subsidiary;
(e) giving security by the Borrower or a Subsidiary in favour of the Borrower or any of its Subsidiaries;
(f) creating, issuing or suffering to exist or becoming liable on, or giving or assuming, any Purchase Money Mortgage;
(g) creating, issuing or suffering to exist or becoming liable on, or giving or assuming any mortgage, hypothecation, charge or other encumbrance in connection with Indebtedness which, by its terms, is non-recourse to the Borrower or the Restricted Subsidiary;
(h) giving security on any specific property or asset in favour of a government within or outside Canada or any political subdivision, department, agency or instrumentality thereof to secure the performance of any covenant or obligation to or in favour of or entered into at the request of any such authorities where such security is required pursuant to any contract, statute, order or regulation;
(i) giving, in the ordinary course of business and for the purpose of carrying on the same, security on current assets to any bank or banks or others to secure payment any obligations repayable on demand or maturing, including any right of workers’ compensationextension or renewal, within 12 months after the date such obligation is incurred;
(j) giving security on property or assets of whatsoever nature other than Restricted Property; provided, however, security on Restricted Property may be given to participate in any fund secure obligations incurred or guarantees of obligations incurred in connection with workers’ compensationor necessarily incidental to the purchase, unemployment insurancesale, old-age pensions storage, transportation or other social security programs, distribution of such Restricted Property or for other similar purposes, other than any Lien imposed by ERISAof the products derived from such Restricted Property;
(dk) Liens encumbrances arising under partnership agreements, oil and natural gas leases, overriding royalty agreements, net profits agreements, production payment agreements, royalty trust agreements, master limited partnership agreements, farm-out agreements, division orders, contracts for the sale, purchase, exchange, storage, transportation, distribution, gathering or processing of mechanicsRestricted Property, materialmenunitizations and pooling designations, warehousemendeclarations, carriers orders and agreements, development agreements, operating agreements, production sales contracts (including security in respect of take or pay or similar obligations thereunder), area of mutual interest agreements, natural gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other like liensdisposal agreements, securing obligations seismic or geophysical permits or agreements, which in each of the foregoing cases is customary in the oil and natural gas business, and other agreements which are customary in the oil and natural gas business, provided in all instances that such encumbrance is limited to the property or assets that are the subject of the relevant agreement;
(l) any encumbrance on any properties or facilities or any interest therein, construction thereon or improvement thereto incurred to secure all or any part of any Indebtedness relating to the reclamation and clean-up of such properties, facilities and interests and surrounding lands whether or not owned by the Borrower or a Restricted Subsidiary, the plugging or abandonment of ▇▇▇▇▇ and the decommissioning or removal of structures or facilities located on such properties or facilities provided such Indebtedness is incurred prior to, during or within two years after the completion of reclamation and clean-up or such other activity;
(m) encumbrances in respect of the joint development, operation or present or future reclamation, clean-up or abandonment of properties, facilities and surrounding lands or related production or processing as security in favour of any other owner or operator of such assets for the Borrower’s or any Restricted Subsidiary’s portion of the costs and expenses of such development, operation, reclamation, clean-up or abandonment;
(n) encumbrances on assets or property (including oil sands property) securing: (i) all or any portion of the cost of acquisition (directly or indirectly), surveying, exploration, drilling, development, extraction, operation, production, construction, alteration, repair or improvement of all or any part of such assets or property and the plugging and abandonment of ▇▇▇▇▇ thereon, (ii) all or any portion of the cost of acquiring (directly or indirectly), developing, constructing, altering, improving, operating or repairing any assets or property (or improvements on such assets or property) used or to be used in connection with such assets or property, whether or not located (or located from time to time) at or on such assets or property, (iii) Indebtedness incurred by the Borrower or any of its Subsidiaries to provide funds for the activities set forth in clauses (i) and (ii) above, provided such Indebtedness is incurred prior to, during or within two years after the completion of acquisition, construction or such other activities referred to in clauses (i) and (ii) above, and (iv) Indebtedness incurred by the Borrower or any of its Subsidiaries to refinance Indebtedness incurred for the purposes set forth in clauses (i) and (ii) above. Without limiting the generality of the foregoing, costs incurred after the date hereof with respect to clauses (i) or (ii) above shall include costs incurred for all facilities relating to such assets or property, or to projects, ventures or other arrangements of which such assets or property form a part or which relate to such assets or property, which facilities shall include, without limitation, Facilities, whether or not in whole or in part located (or from time to time located) at or on such assets or property;
(o) encumbrances granted in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and connection with respect to which adequate reserves with respect thereto are maintained on the books of the applicable PersonFinancial Instrument Obligations;
(ep) good faith pledges deposits referred to in part (i) of the proviso to the definition of Consolidated Debt to Consolidated Capitalization Ratio; and
(q) any extension, renewal, alteration, refinancing, replacement, exchange or deposits refunding (or successive extensions, renewals, alterations, refinancings, replacements, exchanges or refundings) of all or part of any encumbrance referred to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
foregoing clauses; provided, however, that (fi) any Lien arising out such new encumbrance shall be limited to all or part of the property or assets which was secured by the prior encumbrance plus improvements on such property or assets and (ii) the Indebtedness, if any, secured by the new encumbrance is not increased from the amount of the Indebtedness secured by the prior encumbrance then existing at the time of such extension, renewal, alteration, refinancing, extensionreplacement, renewal exchange or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Sectionrefunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations, refinancings, replacements, exchanges or refundings; provided that (i) in any event, the Borrower and any Restricted Subsidiary shall be entitled to give security that would otherwise be prohibited hereby so long as the aggregate Indebtedness outstanding and secured under this (i) and the aggregate Indebtedness outstanding and secured under Subsection 2.1(n) above does not at the time of giving such Debt is not secured by any additional assets, security exceed an amount equal to 10% of the Consolidated Net Tangible Assets of the Borrower at such time and (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any no event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by shall the Borrower or any Restricted Subsidiary in connection with be entitled to give security that would otherwise be permitted by Subsection 2.1(n) if such security secures Indebtedness which exceeds an amount equal to 10% of the Consolidated Net Tangible Assets of the Borrower at such time. Transactions such as the sale (including any NMTC Transaction, provided that forward sale) or other transfer of (i) oil, gas, minerals or other resources of a primary nature, whether in place or when produced, for a period of time until, or in an amount such Liens encumber only that, the assets acquired with the proceeds purchaser will realize therefrom a specified amount of money or a specified rate of return (however determined), or a specified amount of such Debtoil, and gas, minerals, or other resources of a primary nature, or (ii) such Liens are subordinated any other interest in property of the character commonly referred to Liens securing as a “production payment”, will not constitute secured indebtedness and will not result in the Obligations in a manner satisfactory Borrower being required to secure the Borrowings. In the event security has been provided to the Administrative Agent;
(k) Liens securing Debt permitted under Agent and the Lenders in accordance with Section 6.22(e); provided that (i) such Liens do not 2.1 hereof and the maximum principal amount of the Credit Facility is thereafter permanently reduced at any time encumber any property other than or from time to time, the property financed by such Debt Borrower may request once in each calendar year, and (ii) the Debt secured thereby does not exceed Agent and the cost or fair market valueLenders shall grant at the Borrower’s expense, whichever is lowerdischarges of security as will ensure that the remaining security secures, to the satisfaction of the property being acquired Agent on behalf of the date Lenders acting reasonably, the maximum principal amount of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating Credit Facility, as permanently reduced from time to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000time.
Appears in 1 contract
Sources: Credit Agreement (Encana Corp)
Negative Pledge. No Loan Party Neither the Parent nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itany of them, except:
(a) Liens any Lien existing on the date of this Agreement and disclosed in the financial statements referred to in Section 5.4 or set forth on in Schedule 6.086.4;
(b) Liens imposed by Law for taxes, assessments or similar charges, incurred in the ordinary course charges of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to any Governmental Authority for claims which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) 60 days; , or (2) are to the extent that such Lien is being contested diligently in good faith pursuant by appropriate actions and adequate reserves in accordance with GAAP are being maintained therefor, provided that no notice of Lien has been filed or recorded under the Code;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law or created in the ordinary course of business, provided that (i) the obligation secured by the applicable Lien has not been delinquent for more than 90 days or remains payable without penalty and, in each case, the property subject to such Lien is not subject to forfeiture as a result of such Lien or (ii) the applicable Lien is being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(d) Liens (other than any Lien imposed under ERISA) consisting of pledges or deposits in the ordinary course of business (i) required in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) 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 to secure obligations with respect to which adequate reserves with respect thereto are casualty or liability insurance maintained on by the books Parent or any of the applicable Personits Subsidiaries;
(e) good faith pledges Liens on property of the Parent or deposits to secure any Subsidiary securing (i) the non-delinquent performance of bids, trade contracts and leases (other than Debtfor borrowed money), leases or statutory obligations, (ii) surety and bonds (excluding appeal bonds, performance bonds and other bonds posted in connection with court proceedings or judgments) and (iii) other non-delinquent obligations of a like nature (other than Debtincluding those to secure health, safety and environmental obligations) in each case incurred in the ordinary course of business;
(f) Liens consisting of judgment or judicial attachment liens and Liens securing contingent obligations on appeal bonds and other bonds posted in connection with court proceedings or judgments, provided that (x) in the case of judgment and judicial attachment liens, the enforcement of such Liens is effectively stayed, and (y) the aggregate amount secured by all such Liens does not at any Lien arising out time exceed the greater of (i) US$50,000,000 and (ii) 0.5% of the refinancingParent’s consolidated total assets;
(g) easements, extensionrights-of-way, renewal restrictions, encroachments, protrusions and other similar encumbrances on real property which in the aggregate do not materially detract from the value of such property or refunding materially interfere with the ordinary conduct of the businesses of the Parent and its Subsidiaries;
(h) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such leases are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any Debt secured by any Lien permitted by any statutory or common law provision relating to bankers’ liens, rights of clauses set-off or similar rights and remedies (aor, with respect to accounts located in Luxembourg, contractual provisions) through (e) as to deposit accounts or other funds maintained with a creditor depository institution and/or Liens arising in the ordinary course of this Sectionbusiness with respect to deposit accounts relating to intercompany cash pooling, interest set-off and/or sweeping arrangements; provided that (i) such Debt deposit account is not secured a dedicated cash collateral account and is not subject to restrictions against access by any additional assets, the Parent or the applicable Subsidiary in excess of those set forth by regulations promulgated by the FRB and (ii) the amount secured or benefited thereby such deposit account is not increased except as contemplated intended by Section 6.22(b), (iii) the direct Parent 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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Subsidiary to provide collateral to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsdepository institution;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary arising in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative AgentSecuritization Transactions;
(k) Liens on property of any Foreign Subsidiary securing Debt of such Foreign Subsidiary and/or any other Foreign Subsidiary that is permitted under Section 6.22(e6.6;
(l) any Lien existing on property (and the proceeds thereof) existing at the time of its acquisition (by merger or otherwise) or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof (other than any Lien on the equity interests of any Person that becomes a Subsidiary); provided that (i) such Liens do Lien was not at any time encumber any property other than the property financed by created in contemplation of such Debt acquisition or such Person becoming a Subsidiary; and (ii) the Debt or other obligation secured thereby does is not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisitionprohibited by Section 6.6;
(l) 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(j); and
(m) Liens arising out of the conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Parent or any of its Subsidiaries in the ordinary course of business;
(n) Liens solely on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Parent or any Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;
(o) Liens securing reimbursement obligations incurred in the ordinary course of business for trade letters of credit or banker’s acceptances, which Liens encumber only goods, or documents of title covering goods, that are purchased in transactions for which such letters of credit or banker’s acceptances are issued;
(p) Liens incurred in the ordinary course of business in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(q) leases, subleases, licenses or sublicenses (including, in the case of licenses and sublicenses, of intellectual property) granted to others in the ordinary course of business that do not materially interfere with the ordinary conduct of the business of the Parent or any Subsidiary and do not secure any Debt;
(r) Liens of a collecting bank arising under Section 4-210 of the Uniform Commercial Code on items in the ordinary course of collection;
(s) options, put and call arrangements, rights of first refusal and similar rights relating to investments in joint ventures, partnerships and other similar investments not prohibited by this Agreement;
(t) rights of first refusal, put, call and similar rights arising in connection with repurchase agreements that are not prohibited by this Agreement;
(u) any Lien arising under any Loan Document;
(v) any Lien on an asset arising out of an agreement to dispose of such asset, to the extent such disposition is not prohibited by this Agreement and such Lien does not secure any other obligation;
(w) any extension, renewal or substitution of or for any Lien described in clause (a) or (l) above, in each case (A) to the extent that the amount of the Debt or other obligation secured by the applicable Lien shall not exceed the amount of the Debt or other obligation existing immediately prior to such extension, renewal or substitution and (B) so long as the scope of the property subject to such Lien is not increased;
(x) Liens affecting relating to purchase orders and other agreements entered into with customers of the Parent or any Subsidiary in the ordinary course of business;
(y) receipt of progress payments and advances from customers in the ordinary course of business to the extent the same create Liens on the related inventory and proceeds thereof;
(z) Liens on assets pledged in respect of defeased or discharged indebtedness; and (aa) in addition to Liens permitted by clauses (a) through (z) above, any other Lien securing obligations in a Dollar Equivalent amount at the time of creation thereof that, in the aggregate with the outstanding amount of all other Debt and other obligations then secured pursuant to this clause (aa), does not exceed 12.5% of Consolidated Shareholders’ Equity as shown on the then most recent consolidated financial statements of the Parent delivered to the Administrative Agent pursuant to Section 6.1 (or, prior to such initial delivery pursuant to Section 6.1, Section 5.4). Any lien permitted above under this Section 6.4 on any property with an aggregate fair value not may extend to exceed $5,000,000identifiable proceeds of such property.
Appears in 1 contract
Sources: Credit Agreement (PENTAIR PLC)
Negative Pledge. No Loan Party nor KPP will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itacquired, except:
(a) : Permitted Encumbrances; any Liens on any property or asset of KPP or any Subsidiary of KPP existing on the date of this Agreement and hereof set forth on Schedule 6.08;
(b) 7.2; provided, that such Lien shall not apply to any other property or asset of KPP or any such Subsidiary; purchase money Liens for taxes, assessments upon or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions fixed or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assetsLien attaches to such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction thereof; (ii) the amount secured or benefited thereby is such Lien does not increased except as contemplated by Section 6.22(b), extend to any other asset; and (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market valueimproving such fixed or capital assets; any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of KPP, whichever (ii) existing on any asset of any Person at the time such Person is lowermerged with or into KPP or any Subsidiary of KPP or (iii) existing on any asset prior to the acquisition thereof by KPP or any Subsidiary of KPP; provided, that any such Lien was not created in the contemplation of any of the property being acquired foregoing and 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;
; extensions, renewals, or replacements of any Lien referred to in subsections (la) through (d) of this Section; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby; and duringthe period from the date hereof until the 45th day following the Closing Date, Liens in existence on the date hereof securing judgments for the payment obligations of money the Borrower and its Subsidiaries under the UK Facility. Fundamental Changes. KPP will not, and will not permit any Subsidiary to, merge into or consolidate into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or appeal a series of transactions) all or other surety bonds relating to such judgmentssubstantially all of its assets (in each case, whether now owned or hereafter acquired) not constituting an or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and immediately after giving effect thereto, no Default or Event of Default under Section 8.01(jshall have occurred and be continuing (i) any Subsidiary of the Borrower may merge with a Person if such Subsidiary is the surviving Person, (ii) any Subsidiary may merge into another Subsidiary; provided, that if any party to such merger is a Guarantor, the Guarantor shall be the surviving Person, (iii) any Subsidiary of the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Guarantor and (iv) any Subsidiary (other than a Guarantor) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders. KPP will not, and will not permit any of its Subsidiaries to, engage in any business other than businesses of the type conducted by KPP and its Subsidiaries on the date hereof and businesses reasonably related thereto. Investments, Loans, Etc. KPP will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger); and
, any common stock, evidence of indebtedness or other securities (mincluding any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other Liens affecting property with an aggregate fair value not to exceed $5,000,000.interest in, any other Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person (all of the foregoing being collectively called "Investments"), except:
Appears in 1 contract
Sources: Revolving Credit Agreement (Kaneb Pipe Line Partners L P)
Negative Pledge. No Loan Party Borrower shall, nor shall any Subsidiary Borrower permit any of a Loan Party will createits Domestic Subsidiaries to, assume enter into or suffer to exist exist, any agreement prohibiting or conditioning the creation or assumption of any Lien on upon any asset now owned of its property or hereafter acquired by it, assets except:
(a) Liens negative pledges existing on property of LS&Co and its Subsidiaries on the date of this Agreement Original Closing Date and set forth listed on Schedule 6.087.13;
(b) Liens for taxes, assessments or similar charges, incurred negative pledges in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books favor of the applicable Person in accordance with GAAPAgent and the Lenders;
(c) negative pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided purchase money Debt permitted under Section 7.15(c)(iii) solely to the extent that (i) the agreement or instrument governing such Liens encumber only Debt prohibits a Lien on the assets property acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(kd) Liens securing Debt negative pledges in connection with any Capital Lease permitted under Section 6.22(e7.15(c)(xviii) solely to the extent that such Capital Lease prohibits a Lien on the property subject thereto;
(e) negative pledges on the property subject to Equipment Financing Transactions permitted under Section 7.15(c)(viii) and Real Estate Financing Transactions permitted under Section 7.15(c)(vii); , and negative pledges on the property subject to Liens permitted under Section 7.13;
(f) negative pledges on IP Rights licensed from third parties, provided that such negative pledges expressly permit Liens on such IP Rights in favor of the Agent and in favor of the collateral agent for the lenders under an IP Facility;
(ig) such Liens do not at any time encumber any negative pledges with respect to property of LS&Co and its Subsidiaries (other than the property financed by Excluded Subsidiary) contained in documentation for any Capital Markets Transaction (provided such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, negative pledges expressly permit Liens in favor of the Agent and in favor of the agent for an IP Facility on all assets of LS&Co and its Subsidiaries (other than the Excluded Subsidiary), and Liens on equipment subject to Equipment Financing Transactions, real property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or subject to Real Estate Financing Transactions, accounts receivable subject to Permitted Foreign Receivables Transactions, inventory subject to Foreign Inventory Transactions and property subject to any other surety bonds relating to such judgments) not constituting an Event of Default Lien permitted under Section 8.01(j7.13); and
(mh) negative pledges with respect to property of LS&Co and its Subsidiaries (other than the Excluded Subsidiary) contained in documentation for an IP Facility (provided such negative pledges expressly permit Liens affecting in favor of the Agent, and Liens on equipment subject to Equipment Financing Transactions, real property subject to Real Estate Financing Transactions and property subject to any other Lien permitted under Section 7.13); provided, that (i) the requirements of this Section 7.25 (other than with an aggregate fair value respect to negative pledges of Collateral) shall not apply during any Minimum Excess Availability Period and (ii) no Default or Event of Default shall be deemed to exceed $5,000,000have occurred following any Minimum Excess Availability Period based solely on any negative pledges made during any Minimum Excess Availability Period.
Appears in 1 contract
Sources: Credit Agreement (Levi Strauss & Co)
Negative Pledge. No The Borrower will not, and will not permit any Restricted SubsidiarySECTION 6.07 to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by itacquired, except:
for the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by: (a) Liens (i) Requirements of Law, (ii) any Loan Document, (iii) [reserved], (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(v), 6.01(a)(viii) or 6.01(a)(xxvii) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided, that with respect to Indebtedness (A) referred to in clauses (iv) and (v) above, such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or, in the case of Junior Financing, are market terms at the time of issuance and (B) clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced; (b) customary restrictions and conditions existing on the date Effective Date and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition; (c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder; (d) customary provisions in leases, service agreements, licenses, sublicenses, covenants not to sue and other contracts restricting the assignment thereof; (e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement and to the extent such restriction applies only to the property securing such Indebtedness; (f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any Restricted Subsidiary; (g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or are market terms at the time of issuance and are imposed solely on Schedule 6.08;
such Restricted Subsidiary and its Subsidiaries; (bh) Liens for taxes, assessments restrictions on cash (or similar charges, incurred Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable (or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained other restrictions on the books of the applicable Person in accordance with GAAP;
(c) pledges cash or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) daysconstituting Permitted Encumbrances); or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such Debt is not secured by amendment, modification or replacement expands the scope of any additional assets, such restriction or condition; (iij) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, customary provisions in joint venture agreements and (iv) any renewal or extension of the obligations secured or benefited thereby is other similar agreements applicable to joint ventures permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities 6.02 and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating applicable solely to such judgments) not constituting an Event of Default under Section 8.01(j)joint venture; and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000.and 130 Exhibit 10.1
Appears in 1 contract
Sources: Credit Agreement (EverCommerce Inc.)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of payments set forth in Section 2.21 of this Agreement and set forth on Schedule 6.08Agreement;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or other like lienswithin 90 days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction 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;
(e) good faith pledges or deposits to secure purchase money Liens on insurance policies for the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in Borrower and/or its Subsidiaries securing Indebtedness for the ordinary course of businesspremiums therefor;
(f) any Lien arising out (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the refinancingBorrower, extension, renewal or refunding (ii) existing on any asset of any Debt secured Person at the time such Person is merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(g) extensions, renewals, or replacements of any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this SectionSection 7.2; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of replacement is limited to the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;assets originally encumbered thereby; and
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning Liens securing Indebtedness or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged obligations in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value outstanding principal amount not to exceed $5,000,0001,000,000 or assets of comparable value.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Exactech Inc)
Negative Pledge. No The Borrower will not, and will not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits or limits the ability of any Loan Party nor any Subsidiary of a Loan Party will to create, incur, assume or suffer to exist any Lien on upon any asset of their respective properties or revenues, whether now owned or hereafter acquired by itacquired, exceptfor the benefit of the Secured Parties with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to restrictions and conditions imposed by:
(a) Liens existing on (i) Requirements of Law, (ii) any Loan Document, (iii) [reserved], (iv) any documentation governing Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt, (vi) any documentation governing Indebtedness incurred pursuant to Section 6.01(a)(v), 6.01(a)(viii), 6.01(a)(xxvii) or 6.01(a)(xxviii) and (vii) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in any of clauses (i) through (vi) above; provided, that with respect to Indebtedness (A) referred to in clauses (iv) and (v) above, such restrictions shall be no more restrictive in any material respect than the date restrictions and conditions in the Loan Documents or, in the case of this Agreement Junior Financing, are market terms at the time of issuance and set forth on Schedule 6.08(B) clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being refinanced;
(b) Liens for taxescustomary restrictions and conditions existing on the Effective Date and any extension, assessments renewal, amendment, modification or similar chargesreplacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be sold and such sale is permitted hereunder;
(d) customary provisions in leases, service agreements, licenses, sublicenses, covenants not to sue and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any Restricted Subsidiary;
(g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or are market terms at the time of issuance and are imposed solely on such Restricted Subsidiary and its subsidiaries;
(h) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements entered into in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries on cash or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereofdeposits constituting Permitted Encumbrances);
(i) Liens securing restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except to the Obligations created extent any such amendment, modification or arising under replacement expands the Loan Documentsscope of any such restriction or condition;
(j) Liens securing Debt incurred customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) Section 6.02 and applicable solely to such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;joint venture; and
(k) Liens securing Debt permitted under Section 6.22(e); provided customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the Borrower has determined in good faith that (i) such Liens do net worth provisions could not at any time encumber any property other than reasonably be expected to impair the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, ability of the property being acquired on Borrower and the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal or other surety bonds relating Subsidiaries to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000meet their ongoing obligations.
Appears in 1 contract
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party The Borrower will not create, incur, assume or suffer otherwise become liable upon or permit to exist any Lien on on, against or with respect to any asset now owned or hereafter acquired by itof its assets, exceptexcept for:
(a) Liens existing for Taxes and Statutory Prior Claims, assessments or governmental charges or levies which are paid when due or, if overdue, the validity or amount of which is being contested in good faith by appropriate proceedings and in respect of which adequate steps have been taken (which may include cash being paid to or pledged with the relevant Governmental Authority) to prevent penalties from being imposed, interest from accruing and the commencement or continuation of enforcement proceedings and adequate reserves in accordance with Applicable Accounting Principles have been recorded on the date consolidated balance sheet of this Agreement and set forth on Schedule 6.08the Borrower;
(b) mechanics’, carriers’, warehousemen’s, storage, repairers’ and materialmen’s Liens;
(c) Liens or rights of distress reserved in or exercisable under any lease for taxesrent not at the time overdue (or, assessments if overdue, such overdue amount is being contested in good faith by appropriate proceedings, any exercise of rights of distress are stayed and adequate reserves required by Applicable Accounting Principles are recorded in the accounts and financial statements of the Borrower);
(d) customary rights of set-off contained in contracts that are not contracts for Debt entered into in the ordinary and usual course of conducting day-to-day business;
(e) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of combination of accounts or similar charges, incurred rights in the ordinary course of conducting day-to-day banking business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect relation to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions deposit accounts or other social security programsfunds maintained with a financial institution; provided that such Liens (cc) do not relate to any deposit account that is a dedicated cash collateral account which is subject to restrictions against access by the depositor or account holder, (dd) do not relate to any deposit account intended by the depositor or for other similar purposes, other than any Lien imposed by ERISA;
account holder to provide collateral to the depository institution and (d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1ee) are not overdue for a period of more than thirty (30) days; intended directly or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits indirectly to secure the payment or performance of bids, trade contracts and leases (Debt or any other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of businessobligation;
(f) any Lien arising out Liens over specific items of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) property such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b)purchasing money security interests;
(g) the Liens created by the Security and any Lien imposed as a result of a taking under the exercise other Liens created in favour of the power of eminent domain by any governmental body or by any Person acting under governmental authority;Lender; and
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and such other similar purposes, or zoning or other restrictions Liens securing such obligations as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to may be approved by the Administrative Agent prior Lender from time to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000time.
Appears in 1 contract
Sources: Loan Agreement (Liberty Silver Corp)
Negative Pledge. No Loan Party Neither the Company nor any Subsidiary of a Loan Party will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by itany of them, except:
(a) Liens any Lien existing on the date of this Agreement and disclosed in the financial statements referred to in Section 12.04 or set forth on in Schedule 6.0813.04, and any extension, renewal or replacement of any such Lien so long as the principal amount secured thereby is not increased and the scope of the property subject to such Lien is not extended;
(b) Liens imposed by law for taxes, assessments or similar charges, incurred in the ordinary course charges of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to any Governmental Authority for claims which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty 30 days, or to the extent that such Lien is being contested in good faith by appropriate proceedings and adequate reserves in accordance with GAAP are being maintained therefor, provided that no notice of Lien has been filed or recorded under the Code;
(30c) days; statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law or (2) created in the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested diligently in good faith pursuant by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(d) Liens (other than any Lien imposed under ERISA) consisting of pledges or deposits in the ordinary course of business (i) required in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) 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 to appropriate proceedings and secure obligations with respect to which adequate reserves with respect thereto are casualty or liability insurance maintained on by the books Company or any of the applicable Personits Subsidiaries;
(e) good faith pledges Liens on property of the Company or deposits to secure any Subsidiary securing (i) the non-delinquent performance of bids, trade contracts and leases (other than Debtfor borrowed money), leases or statutory obligations, (ii) surety and bonds (excluding appeal bonds, performance bonds and other bonds posted in connection with court proceedings or judgments) and (iii) other non-delinquent obligations of a like nature (other than Debtincluding those to secure health, safety and environmental obligations) in each case incurred in the ordinary course of business;
(f) Liens consisting of judgment or judicial attachment liens and Liens securing contingent obligations on appeal bonds and other bonds posted in connection with court proceedings or judgments, provided that (i) in the case of judgment and judicial attachment liens, the enforcement of such Liens is effectively stayed, and (ii) all such Liens in the aggregate at any Lien arising out time outstanding for the Company and its Subsidiaries do not exceed US$10,000,000;
(g) easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances on real property which in the aggregate do not materially detract from the value of such property or materially interfere with the ordinary conduct of the refinancingbusinesses of the Company and its Subsidiaries;
(h) Liens securing obligations in respect of capital leases on assets subject to such leases, extension, renewal or refunding provided that such capital leases are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any Debt secured by any Lien permitted by any statutory or common law provision relating to banker’s liens, rights of clauses (a) through (e) of this Sectionset-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such Debt deposit account is not secured a dedicated cash collateral account and is not subject to restrictions against access by any additional assets, the Company or the applicable Subsidiary in excess of those set forth by regulations promulgated by the FRB and (ii) the amount secured or benefited thereby such deposit account is not increased except as contemplated intended by Section 6.22(b), (iii) the direct Company 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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as Subsidiary to provide collateral to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsdepository institution;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary arising in connection with any NMTC Transaction, Securitization Transactions; provided that the aggregate investment or claim held at any time by all purchasers, assignees or other transferees of (ior of interests in) such Liens encumber only receivables and other rights to payment in all Securitization Transactions shall not at any time exceed in the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agentaggregate US$200,000,000;
(k) Liens on property of any Foreign Subsidiary securing Debt of such Foreign Subsidiary that is permitted under Section 6.22(e13.06;
(l) any Lien existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary, in each case after the date hereof (other than any Lien on the Equity Interest of any Person that becomes a Subsidiary); provided that (i) such Liens do Lien was not at any time encumber any property other than the property financed by created in contemplation of such Debt and acquisition or such Person becoming a Subsidiary; (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisitionpermitted under Section 13.06;
(lm) Liens securing judgments arising out of the conditional sale, title retention, consignment or similar arrangements for the payment sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(n) Liens solely on ▇▇▇▇ ▇▇▇▇▇▇▇ money (deposits made by the Company or appeal any Subsidiary in connection with any letter of intent or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j)purchase agreement permitted hereunder; and
(mo) in addition to Liens permitted by subsections (a) through (n) above, other Liens affecting property with an aggregate fair value securing Debt in a Dollar Equivalent amount not to exceed $5,000,000exceeding 12.5% of Consolidated Shareholders’ Equity.
Appears in 1 contract
Sources: Credit Agreement (Pentair Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of this Agreement and payments set forth on Schedule 6.08in Section 8.2;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset and proceeds thereof of the ordinary course of business Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions other property or other social security programs, or for other similar purposes, asset (other than proceeds thereof) of the Borrower or any Lien imposed by ERISASubsidiary;
(d) purchase money Liens of mechanics, materialmen, warehousemen, carriers upon or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; any fixed or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits capital assets to secure the performance purchase price or the cost of bidsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, trade contracts and leases construction or improvement of such fixed or capital assets (other than Debtincluding Liens securing any Capital Lease Obligations); provided, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured Lien secures Indebtedness permitted by any additional assetsSection 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the amount secured acquisition, improvement or benefited thereby is not increased except as contemplated by Section 6.22(b), completion of the construction thereof; (iii) the direct or such Lien does not extend to any contingent obligor with respect thereto is not changed, other asset (other than proceeds thereof); and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost of acquiring, constructing or fair market value, whichever is lower, improving such fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the property being acquired Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(lf) Liens securing judgments for extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (d) of this Section 7.2; provided, that the payment principal amount of money (the Indebtedness secured thereby is not increased and that any such extension, renewal or appeal or other surety bonds relating replacement is limited to such judgments) not constituting an Event of Default under Section 8.01(j)the assets originally encumbered thereby; and
(mg) other Liens affecting property with an aggregate fair value securing obligations of the Borrower or any Subsidiary that are not to Indebtedness and that do not exceed $5,000,00010,000,000 in the aggregate at any time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Catalyst Health Solutions, Inc.)
Negative Pledge. No Loan Party nor The Borrower will not, and the Borrower will not permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement granted by the Borrower or any Restricted Subsidiary and set forth securing Indebtedness or other obligations outstanding on Schedule 6.08the date of this Agreement;
(b) Liens for taxes, assessments any Lien on any asset of any Person existing at the time such Person is merged or similar charges, incurred consolidated with or into the Borrower or any Restricted Subsidiary and not created in the ordinary course contemplation of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPsuch event;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed existing on any asset prior to the acquisition thereof by ERISAthe Borrower or any Restricted Subsidiary and not created in contemplation of such acquisition;
(d) Liens any Lien on any asset securing Indebtedness incurred or assumed for the purpose of mechanics, materialmen, warehousemen, carriers financing all or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books any part of the applicable Personcost of acquiring such asset; provided that such Lien attaches to such asset concurrently with or within 365 days after the acquisition thereof;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt Indebtedness or other obligations secured by any Lien otherwise permitted by any of the foregoing clauses (a) through (e) of this SectionSection 5.08; provided that (i) the principal amount of such Debt Indebtedness or the amount of such other obligation, as applicable, is not increased and is not secured by any additional assets;
(f) Liens for taxes, (ii) the amount secured assessments or benefited thereby is other governmental charges or levies not increased except as contemplated yet due or which are being contested in good faith by Section 6.22(b), (iii) the direct or any contingent obligor appropriate proceedings and with respect thereto is not changed, and (iv) any renewal to which adequate reserves or extension of the obligations secured or benefited thereby is permitted by Section 6.22(b)other appropriate provisions are being maintained in accordance with GAAP;
(g) any Lien statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed as a result by law, created in the ordinary course of a taking under the exercise business and for amounts not past due for more than 60 days or which are being contested in good faith by appropriate proceedings that are sufficient to prevent imminent foreclosure of the power of eminent domain by any governmental body such Liens, are promptly instituted and diligently conducted and with respect to which adequate reserves or by any Person acting under governmental authorityother appropriate provisions are being maintained in accordance with GAAP;
(h) minor survey exceptions Liens incurred or minor encumbrancesdeposits made in the ordinary course of business (including, without limitation, surety bonds and appeal bonds) in connection with workers compensation, unemployment insurance and other types of social security benefits or to secure the performance of tenders, bids, leases, contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations or arising as a result of progress payments under government contracts;
(i) easements or reservations(including, or rights of others for without limitation, reciprocal easement agreements and utility agreements), rights-of-way, utilities covenants, consents, reservations, encroachments, variations and other similar purposesrestrictions, charges or zoning encumbrances (whether or other restrictions as to not recorded) affecting the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documentsproperty;
(j) Liens with respect to judgments and attachments that do not result in an Event of Default;
(k) Liens, deposits or pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), leases (permitted under the terms of this Agreement), public or statutory obligations, surety, stay, appeal, indemnity, performance or other obligations arising in the ordinary course of business;
(l) other Liens, including Liens imposed by Environmental Laws, arising in the ordinary course of business of the Borrower or such Restricted Subsidiary that (i) do not secure Indebtedness, (ii) do not secure obligations in an aggregate amount exceeding $25,000,000 at any time at which Investment Grade Status does not exist as to the Borrower, and (iii) do not in the aggregate materially detract from the value of the assets of the Borrower or such Restricted Subsidiary or materially impair the use thereof in the operation of its business;
(m) Liens required pursuant to the terms of this Agreement;
(n) Liens on Permitted Cash Collateral securing Debt incurred only Cash Collateralized Term Loans;
(o) Liens on and pledges of the Equity Securities of any joint venture owned by the Borrower or any Restricted Subsidiary in connection with (other than any NMTC Transaction, provided such joint venture that (iis a Consolidated Subsidiary) such Liens encumber only to the assets acquired with the proceeds extent securing Indebtedness of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory joint venture that is non-recourse to the Administrative AgentBorrower or any Restricted Subsidiary;
(kp) bankers’ Liens, rights of setoff and other similar Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at existing solely with respect to cash and cash equivalents on deposit in one or more accounts maintained by the Borrower or any time encumber any property other than Restricted Subsidiary, in each case granted in the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, ordinary course of business in favor of the property being acquired on the date of acquisitionbank 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;
(lq) Liens securing judgments incurred in the ordinary course of business to secure liability for premiums to insurance carriers or to maintain self-insurance;
(r) Liens in favor of the Borrower or any of its wholly-owned Restricted Subsidiaries;
(s) rights of first refusal entered into in the ordinary course of business;
(t) any letter of credit issued for the payment account of money (the Borrower or appeal or other surety bonds relating any of its Affiliates to such judgments) not constituting an Event of Default secure Indebtedness under Section 8.01(j)tax free financings; and
(mu) other Liens affecting property with not otherwise permitted by the foregoing clauses of this Section 5.08 securing obligations in an aggregate fair value principal or face amount at any date not to exceed $5,000,00015% of Consolidated Net Tangible Assets; provided, for the purposes of this Section 5.08(u), with respect to any such secured Indebtedness of a non-wholly owned Subsidiary of the Borrower with no recourse to the Borrower or any wholly-owned Subsidiary thereof, only that portion of such Indebtedness reflecting the Borrower’s pro rata ownership interest therein shall be included in calculating compliance herewith.
Appears in 1 contract
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any Subsidiary of a Loan Party will its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing securing the Obligations, provided, however, that no Liens may secure Hedging Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations and subject to the date priority of this Agreement and payments set forth on Schedule 6.08in Section 2.20;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges or deposits made in Liens on Collateral securing the ordinary course of business to secure payment of workers’ compensation, to participate in Second Lien Term Loan Agreement and the Second Lien Notes and any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except guaranties thereof as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e7.1(e); provided that (i) such Liens securing such Indebtedness do create a Lien on any asset or property that is not at any time encumber any property other than subject to a Lien under the property financed by such Debt Collateral Documents and (ii) such Liens securing such Indebtedness shall at all times are subordinate to the Debt Liens securing the Obligations pursuant to the Second Lien Intercreditor Agreement;
(d) any Liens on any property or asset of the Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary;
(e) purchase money Liens upon or in any fixed or capital assets (including vehicles and equipment) 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(i)(ii), (ii) such Lien attaches to such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction 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 fair market value, whichever is lower, improving such fixed or capital assets;
(f) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the property being acquired Borrower, (ii) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the foregoing and 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;
(lg) Liens securing judgments on cash, in an aggregate amount not to exceed $500,000, posted as collateral to secure letters of credit in accordance with Section 7.1(f);
(h) Contractual rights of set-off allowing Shell Energy North America (US), L.P. or any Affiliate to set off amounts owed to the Borrower and its Subsidiaries for the payment purchase of money Hydrocarbons against amounts owed by the Borrower and is Subsidiaries to Shell Energy North America (US), L.P. or any Affiliate pursuant to any Hedging Transaction in respect of commodities; provided that, such set-off rights shall not extend beyond the date that is ninety (90) days after the Closing Date (or appeal or other surety bonds relating such later date as reasonably acceptable to such judgments) not constituting an Event of Default under Section 8.01(jthe Administrative Agent); and
(mi) other Liens affecting property with an aggregate fair value extensions, renewals, or replacements of any Lien referred to in paragraphs (a), (b), (d) or (e) of this Section 7.2; provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to exceed $5,000,000the assets originally encumbered thereby.
Appears in 1 contract
Sources: Revolving Credit Agreement (Ram Energy Resources Inc)
Negative Pledge. No Loan Party nor The Borrower will not, and will not permit any of its Subsidiary of a Loan Party will Guarantors to, create, incur, assume or suffer to exist any Lien on any asset of its assets or property now owned or hereafter acquired by itor, except:
(a) Liens existing on securing the date of this Agreement and set forth on Schedule 6.08Obligations;
(b) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAPPermitted Encumbrances;
(c) pledges any Liens on any property or deposits made in asset of the ordinary course Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to any other property or asset of business to secure payment of workers’ compensation, to participate in the Borrower or any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISASubsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of mechanicsconstruction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, materialmenconstruction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided, warehousementhat (i) such Lien secures Indebtedness permitted by Section 7.1(c), carriers (ii) such Lien attaches to such asset concurrently or other like lienswithin 90 days after the acquisition, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; improvement or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books completion of the applicable Personconstruction 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;
(e) good faith pledges rights of set off, rights over a margin call account, any form of cash collateral or deposits to secure the performance of bidssimilar arrangement, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other in any case for obligations of a like nature (other than Debt) incurred in respect of any Hedging Transactions so long as such Liens do not encumber assets securing the ordinary course of businessObligations;
(f) extensions, renewals, or replacements of any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses referred to in paragraphs (a) through (e) of this SectionSection 7.2; provided provided, that (i) such Debt is not the principal amount of the Indebtedness secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b)and that any such extension, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of replacement is limited to the obligations secured or benefited thereby is permitted by Section 6.22(b)assets originally encumbered thereby;
(g) any Lien imposed as a result of a taking Liens securing the obligations under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;Investment Credit Agreement; and
(h) minor survey exceptions Liens created pursuant to or minor encumbrances, easements or reservations, or rights in respect of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000Permitted Senior Investment Participation.
Appears in 1 contract
Sources: Revolving Credit Agreement (NGP Capital Resources Co)
Negative Pledge. No Loan Party nor any Subsidiary of a Loan Party will Company shall create, assume or suffer to exist any Lien on upon any asset of its property or assets, whether now owned or hereafter acquired by it, exceptacquired; provided that this Section shall not apply to the following:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;
(bi) Liens for taxes, assessments or similar charges, incurred in the ordinary course of business that are taxes not yet due and payable or that are being actively contested in good faith and with due diligence by appropriate proceedings and with respect to for which adequate reserves with respect thereto are maintained on the books of the applicable Person shall have been established in accordance with GAAP;
(cii) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISAgranted to Agent, for the benefit of the Lenders;
(diii) other statutory Liens incidental to the conduct of mechanics, materialmen, warehousemen, carriers its business or other like liens, securing obligations incurred in the ordinary course ownership of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings its property and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses (a) through (e) of this Section; provided assets that (i) such Debt is were not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with borrowing of money or the proceeds obtaining of such Debtadvances or credit, and (ii) such Liens are subordinated to Liens securing do not in the Obligations aggregate materially detract from the value of its property or assets or materially impair the use thereof in a manner satisfactory to the Administrative Agentoperation of its business;
(kiv) Liens on property or assets of a Subsidiary to secure obligations of such Subsidiary to a Credit Party;
(v) purchase money Liens on fixed assets securing Debt permitted under the loans and capitalized leases pursuant to Section 6.22(e); 5.8(b) hereof, provided that (i) each such Liens do not at any time encumber any property other than Lien is limited to the property financed by such Debt purchase price and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of only attaches to the property being acquired on the date of acquisitionacquired;
(lvi) the Liens existing on the Closing Date as set forth in Schedule 5.9 hereto, and replacements, extensions, renewals, refundings or refinancings thereof, but only to the extent that the amount of debt secured thereby shall not be increased;
(vii) easements or other minor defects or irregularities in title of real property not interfering in any material respect with the use of such property in the business of any Company;
(viii) liens on assets of the Mexican Subsidiaries securing the Indebtedness described in Section 5.8(g) hereof; or
(ix) Liens on fixed assets securing judgments for the payment of money (loans incurred pursuant to Section 5.8(f) hereof, provided that each such Lien is limited to the assets purchased or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000leased.
Appears in 1 contract
Sources: Credit and Security Agreement (Shiloh Industries Inc)
Negative Pledge. No Loan Party xiii.Neither IR Parent nor the Borrower will, nor will it permit any Restricted Subsidiary of a Loan Party will to, create, assume or suffer to exist guarantee any Lien indebtedness for money borrowed secured by a Mortgage on any asset Principal Property of the Borrower, IR Parent or any Restricted Subsidiary or on any shares or indebtedness of any Restricted Subsidiary (whether such Principal Property, shares or indebtedness are now owned or hereafter acquired acquired) without, in any such case, effectively providing concurrently with the creation, assumption or guaranteeing of such indebtedness that the Loans and the obligations of the Loan Parties hereunder and under the Notes (together, if the Borrower or IR Parent shall so determine, with any other indebtedness then or thereafter existing created, assumed or guaranteed by itthe Borrower, except:IR Parent or such Restricted Subsidiary ranking equally with the Loans and the obligations of the Loan Parties hereunder and under the Notes) shall be secured equally and ratably with such indebtedness, excluding, however, from the foregoing any indebtedness secured by a Mortgage (including any extension, renewal or replacement, or successive extensions, renewals or replacements, of any Mortgage hereinafter specified or any indebtedness secured thereby, without increase of the principal of such indebtedness):
(ai) Liens on property, shares or indebtedness of any corporation which Mortgage exists at the time such corporation becomes a Restricted Subsidiary; or
(ii) on property existing at the time of acquisition thereof by the Borrower, IR Parent or a Restricted Subsidiary, or securing any indebtedness incurred by the Borrower, IR Parent or a Restricted Subsidiary prior to, at the time of or within 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operation of such property, which indebtedness is incurred for the purpose of financing all or any part of the purchase price thereof or construction or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement the Mortgage shall not apply to any property theretofore owned by the Borrower, IR Parent or a Restricted Subsidiary, other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located; or
(iii) on property, shares or indebtedness of a corporation, which Mortgage exists at the time such corporation is merged into or consolidated with the Borrower, IR Parent or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to the Borrower, IR Parent or a Restricted Subsidiary; or
(iv) on property of a Restricted Subsidiary to secure indebtedness of such Restricted Subsidiary to the Borrower, IR Parent or another Restricted Subsidiary; or
(v) on property of the Borrower, IR Parent or a Restricted Subsidiary in favor of the United States of America or any state thereof or Bermuda or the jurisdiction of organization of IR Parent, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof or Bermuda or the jurisdiction of organization of IR Parent, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Mortgage; or
(vi) on property, which Mortgage exists at the date of this Agreement and set forth on Schedule 6.08;Agreement; or
(bvii) Liens for taxes, assessments or similar charges, incurred in with the ordinary course of business that are not yet due and payable or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books prior written approval of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensationRequired Banks; provided, to participate in however, that any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien Mortgage permitted by any of the foregoing clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets), (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (ivv) of this Section 5.6 shall not extend to or cover any renewal or extension property of the obligations secured Borrower, IR Parent or benefited thereby is permitted by Section 6.22(b);
(g) any Lien imposed such Restricted Subsidiary, as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrancescase may be, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by specified in such Debt clauses and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000improvements thereto.
Appears in 1 contract
Negative Pledge. No Loan Party nor (a) So long as any Subsidiary Securities of a Loan Party will series are Outstanding and subject to the terms of this Indenture, the Company shall not, and shall not permit any Restricted Subsidiary to, create, incur, issue, assume or suffer to exist otherwise have outstanding any Lien Mortgage on or over any asset Principal Property now owned or hereafter acquired by itthe Company or a Restricted Subsidiary to secure any Indebtedness, exceptor on shares of stock or Indebtedness of any Restricted Subsidiary, now owned or hereafter acquired by the Company or a Restricted Subsidiary to secure any Indebtedness, unless at the time thereof or prior thereto the Outstanding Securities of such series (together with, if and to the extent the Company shall so determine, any other Indebtedness then existing or thereafter created) are secured (for the avoidance of doubt, but only to the extent of any Mortgage not otherwise permitted pursuant to the below proviso to this paragraph) equally and ratably with (or prior to) any and all such Indebtedness for so long as such Indebtedness shall be secured by such Mortgage, provided, however, that the foregoing covenants shall not apply to or operate to prevent or restrict any of the following:
(a1) Liens any Mortgage on property, shares of stock or Indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary or created, incurred, issued or assumed in connection with the acquisition of any such Person;
(2) any Mortgage on any Principal Property created, incurred, issued or assumed at or prior to the time such property became a Principal Property or existing at the time of acquisition of such Principal Property by the Company or a Restricted Subsidiary, whether or not assumed by the Company or such Restricted Subsidiary; provided that no such Mortgage shall extend to any other Principal Property of the Company or any Restricted Subsidiary;
(3) any Mortgage on all or any part of any Principal Property (including any improvements or additions to improvements on a Principal Property) hereafter acquired, developed, expanded or constructed by the Company or any Restricted Subsidiary to secure the payment of all or any part of the purchase price, cost of acquisition or cost of development, expansion or construction of such Principal Property or of improvements or additions to improvements thereon (or to secure any Indebtedness incurred by the Company or a Restricted Subsidiary for the purpose of financing all or any part of the purchase price, cost of acquisition or cost of development, expansion or construction thereof or of improvements or additions to improvements thereon) created prior to, at the time of, or within 360 days after the later of, the acquisition, development, expansion or completion of construction (including construction of improvements or additions to improvements thereon), or commencement of full operation of such Principal Property; provided that no such Mortgage shall extend to any other Principal Property of the Company or a Restricted Subsidiary other than, in the case of any such construction, improvement, development, expansion or addition to improvements, all or any part of any other Principal Property on which the Principal Property so constructed, developed or expanded, or the improvement or addition to improvement, is located;
(4) any Mortgage on any Principal Property of any Restricted Subsidiary to secure Indebtedness owing by it to the Company or to another Restricted Subsidiary;
(5) any Mortgage on any Principal Property of the Company to secure Indebtedness owing by it to a Restricted Subsidiary;
(6) any Mortgage on any Principal Property or other assets of the Company or any Restricted Subsidiary existing on the date of this Agreement Indenture, or arising thereafter pursuant to contractual commitments entered into prior to the date of this Indenture;
(7) any Mortgage on any Principal Property or other assets of the Company or any Restricted Subsidiary created for the sole purpose of extending, renewing, altering or refunding any of the foregoing Mortgages, provided that the Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal, alteration or refunding, plus an amount necessary to pay fees and set forth expenses, including premiums, related to such extensions, renewals, alterations or refundings, and that such extension, renewal, alteration or refunding Mortgage shall be limited to all or any part of the same Principal Property and improvements and additions to improvements thereon and/or shares of stock and Indebtedness of a Restricted Subsidiary which secured the Mortgage extended, renewed, altered or refunded or either of such property or shares of stock or Indebtedness; or
(8) any Mortgage on Schedule 6.08;any Principal Property or on any shares of stock or Indebtedness of any Restricted Subsidiary created, incurred, issued or assumed to secure Indebtedness of the Company or any Restricted Subsidiary, which would otherwise be subject to the foregoing restrictions of this Section 4.04, in an aggregate amount which, together with the aggregate principal amount of other Indebtedness secured by Mortgages on any Principal Property or on any shares of stock or Indebtedness of any Restricted Subsidiary (excluding Indebtedness secured by Mortgages permitted under the foregoing exceptions) and, without duplication, Indebtedness Incurred pursuant to Section 4.05(a)(4), in each case, then outstanding would not then exceed 10% of Consolidated Net Tangible Assets.
(b) Liens for taxesFor purposes of this Section 4.04, assessments the giving of a guarantee which is secured by a Mortgage on a Principal Property or similar chargeson shares of stock or Indebtedness of any Restricted Subsidiary, incurred and the creation of a Mortgage on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary to secure Indebtedness which existed prior to the creation of such Mortgage, shall be deemed to involve the creation of Indebtedness in an amount equal to the ordinary course principal amount guaranteed or secured by such Mortgage but the amount of business that are not yet due Indebtedness secured by Mortgages on any Principal Property and payable shares of stock and Indebtedness of Restricted Subsidiaries shall be computed without cumulating the underlying Indebtedness with any guarantee thereof or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on Mortgage securing the books of the applicable Person in accordance with GAAP;same.
(c) pledges For purposes of this Section 4.04, the following types of transactions shall not be deemed to be Mortgages securing Indebtedness and accordingly, nothing contained in this Section 4.04 shall prevent, restrict or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business thatapply to: (1i) are not overdue for a period any acquisition by the Company or any Restricted Subsidiary of more than thirty any property or assets subject to any reservation or exception under the terms of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved or excepted an interest in base metals, precious metals, oil, gas or any other mineral or timber in place or the proceeds thereof; (30ii) daysany conveyance or assignment whereby the Company or any Restricted Subsidiary conveys or assigns to any Person or Persons an interest in base metals, precious metals, oil, gas or any other mineral or timber in place or the proceeds thereof; or (2iii) are being contested diligently any Mortgage upon any property or assets owned or leased by the Company or any Restricted Subsidiary or in good faith pursuant which the Company or any Restricted Subsidiary owns an interest to appropriate proceedings and with respect secure to which adequate reserves with respect thereto are maintained on the books Person or Persons paying the expenses of developing or conducting operations for the recovery, storage, transportation or sale of the applicable Person;
(e) good faith pledges or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out mineral resources of the refinancing, extension, renewal said property (or refunding property with which it is utilized) the payment to such Person or Persons of any Debt secured by any Lien permitted by any the Company’s or the Restricted Subsidiary’s proportionate part of clauses (a) through (e) of this Sectionsuch development or operating expense; provided that (i) such Debt is Mortgage does not secured by extend beyond such property or assets and that the principal amount of any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(b);
(g) any Lien imposed as a result of a taking under the exercise of the power of eminent domain by any governmental body or by any Person acting under governmental authority;
(h) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transaction, provided that (i) such Liens encumber only the assets acquired with the proceeds of such Debt, and (ii) such Liens are subordinated to Liens securing the Obligations in a manner satisfactory to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and (ii) the Debt Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, amount of the property being acquired on the date of acquisition;
(l) 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(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000expenses.
Appears in 1 contract
Sources: Indenture (Teck Resources LTD)
Negative Pledge. No Loan Party nor any Subsidiary The Borrower shall not, without first complying with the requirements of a Loan Party will Section 8.1, directly or indirectly create, incur, assume or suffer permit to exist any Lien lien, mortgage, pledge, security interest, charge or encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any other agreement to give any security interest) on or with respect to any asset now owned or hereafter acquired by itof the Excepted Property (other than the Excepted Property described in paragraph P of the definition of Excepted Property, exceptwhich property shall not be subject to this Section 5.9) except for:
(ai) Liens existing on Permitted Exceptions (other than the date Permitted Exception described in paragraph Y of this Agreement and set forth on Schedule 6.08the definition of Permitted Exceptions);
(ii) as to the Excepted Property described in paragraphs B through E, inclusive, and paragraph K of the definition of Excepted Property, liens, mortgages, pledges, security interests, charges and encumbrances in connection with purchase money, construction or acquisition indebtedness (or renewals or extensions thereof) that encumber only the asset or assets so purchased, constructed or acquired or property improved through such purchase, construction or acquisition, and the proceeds upon a sale, transfer or exchange thereof;
(iii) liens, mortgages, pledges, security interests, charges and encumbrances (a) for the benefit of all Holders of the Obligations issued under the Indenture, (b) Liens for taxes, assessments in connection with any bond or similar chargesfund established by the Borrower with respect to any debt securities, incurred the interest on which is excludable from gross income of the holder thereof pursuant to the Internal Revenue Code, as amended, to the extent of amounts deposited in such funds in the ordinary course of business that are not yet due and payable to make regularly scheduled payments on such debt securities, or that are being contested in good faith and with due diligence by appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(c) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund in connection with workers’ compensationany debt service or similar fund established by the Borrower for the payment of principal or interest on debt securities, unemployment insurance, old-age pensions or other social security programs, or for other similar purposes, other than any Lien imposed by ERISA;
(d) Liens the interest on which is excludable from gross income of mechanics, materialmen, warehousemen, carriers or other like liens, securing obligations incurred in the ordinary course of business that: (1) are not overdue for a period of more than thirty (30) days; or (2) are being contested diligently in good faith holder thereof pursuant to appropriate proceedings and with respect to which adequate reserves with respect thereto are maintained on the books Internal Revenue Code, as amended, if such fund is funded solely from the proceeds of the applicable Person;
issuance of such debt securities (e) good faith pledges or deposits to secure funded in connection with the performance refinancing of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred in the ordinary course of business;
(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured debt by any Lien permitted by any of clauses (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(bdebt securities);
(giv) liens, pledges, security interests, charges and encumbrances with respect to any Lien imposed as a result of a taking under the exercise interest, debt or equity, of the power of eminent domain Borrower in the National Rural Utilities Cooperative Finance Corporation or CoBank, ACB purchased or otherwise acquired by the Borrower in connection with membership in any governmental body such entity or by any Person acting under governmental authorityborrowing from any such entity;
(hv) minor survey exceptions or minor encumbrancesliens, easements or reservationspledges, or rights of others for rights-of-waysecurity interests, utilities charges and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct of the activities of the Borrower and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or encumbrances arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC Transactionlegal or economic defeasance of indebtedness, provided that (i) such Liens encumber only unless the assets acquired funding of the defeasance is during an Increased Oversight Period or a Highest Oversight Period and more than 20% of the defeasance is funded other than with the proceeds of the issuance of new indebtedness (in which case the Borrower shall first comply with the requirements of Section 8.1 before permitting or creating any such Debtlien, pledge, security interest, charge or encumbrance); or
(vi) liens, pledges, security interests, charges and (ii) such Liens are subordinated encumbrances with respect to Liens securing the Obligations in a manner satisfactory deposit, brokerage, commodity and other similar accounts to the Administrative Agent;
(k) Liens securing Debt permitted under Section 6.22(e); provided that (i) extent such Liens liens, pledges, security interests, charges and encumbrances do not at any time encumber any property secure indebtedness for borrowed money other than the property financed by such Debt and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(l) Liens securing judgments for the payment of money (or appeal indebtedness incurred in connection with acquiring securities or other surety bonds relating to investments deposited in any such judgments) not constituting an Event of Default under Section 8.01(j); and
(m) other Liens affecting property with an aggregate fair value not to exceed $5,000,000account.
Appears in 1 contract
Negative Pledge. No Loan Party nor any Subsidiary (a) Except as provided below, no member of a Loan Party will create, assume the Group may create or suffer allow to exist any Lien Security Interest on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth on Schedule 6.08;its assets.
(b) Liens Paragraph (a) does not apply to (collectively Permitted Security Interests):
(i) any Security Interest constituted by the Security Documents;
(ii) any liens and the property subject thereto listed and described in schedule IX of the EnerSys Capital Credit Agreement, plus any extensions or renewals of such liens, provided that (x) the aggregate principal amount of the Financial Indebtedness, if any, secured by such liens does not increase from that amount outstanding at the time of any such renewal, replacement or extension and (y) any such renewal, replacement or extension does not encumber any additional assets or properties of Holdings or any of its Subsidiaries;
(iii) any Security Interest comprising a netting or set-off arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for taxesthe purpose of netting debit and credit balances;
(iv) any lien arising from a judgment, assessments decree or similar chargesattachment in circumstances not constituting an Event of Default, provided that no cash or other property shall be pledged by Holdings or any of its Subsidiaries as security therefor;
(v) any lien in respect of property or assets of the Parent or any of its Subsidiaries imposed by law which were incurred in the ordinary course of business that and which have not arisen to secure Financial Indebtedness for borrowed money, such as carriers’, warehousemen’s and mechanics’ liens, statutory landlord’s liens, and other similar liens arising in the ordinary course of business, and which either (x) do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Parent or any of its Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or asset subject to such lien;
(vi) any inchoate lien for taxes, assessments or governmental charges or levies not yet due and payable or that are lien for taxes, assessments or governmental charges or levies being contested in good faith and with due diligence by appropriate proceedings and with respect to for which adequate reserves with respect thereto are maintained on the books of the applicable Person have been established in accordance with GAAP;
(cvii) pledges any lien (x) incurred or deposits made in the ordinary course of business to secure payment of workers’ compensation, to participate in any fund the Parent and its Subsidiaries in connection with workers’ compensation, unemployment insurance, old-age pensions or other social security programs, or for insurance and other similar purposesliens, (y) to secure the performance by the Parent and its Subsidiaries of tenders, statutory obligations (other than any Lien imposed excise taxes), surety, stay and customs bonds, statutory bonds, 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 (z) to secure the performance by ERISA;
(d) Liens the Parent and its Subsidiaries of mechanicsleases of Real Property, materialmen, warehousemen, carriers to the extent incurred or other like liens, securing obligations incurred made in the ordinary course of business that: (1) are not overdue for a period consistent with past practices, provided that the aggregate amount of more than thirty (30) days; or (2) are being contested diligently in good faith deposits at any time pursuant to appropriate proceedings preceding sub-clause (y) and with respect to which adequate reserves with respect thereto are maintained on sub-clause (z) shall not exceed US$7,500,000 in the books of the applicable Personaggregate;
(eviii) good faith pledges licenses, leases or deposits subleases granted to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (other than Debt) incurred third persons in the ordinary course of businessbusiness not interfering in any material respect with the business of Holdings or any of its Subsidiaries;
(fix) any Lien liens arising out of from or related to precautionary UCC financing statements regarding operating leases entered into by the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of clauses Parent and its Subsidiaries (a) through (e) of this Section; provided that (i) such Debt is not secured by any additional assets, (ii) other than the amount secured or benefited thereby is not increased except as contemplated by Section 6.22(b), (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 6.22(bReceivables Entity);
(gx) any Lien imposed as a result lien created pursuant to Capital Leases permitted by Clause 18.7(b)(ii) (Financial Indebtedness), provided that (x) such liens only serve to secure the payment of a taking Indebtedness arising under such Capitalised Lease Obligation and (y) the exercise lien encumbering the asset giving rise to the Capitalised Lease Obligation does not encumber any other asset of the power Company or any of eminent domain by any governmental body or by any Person acting under governmental authorityits Subsidiaries;
(hxi) minor survey exceptions any lien arising pursuant to purchase money, mortgages or minor encumbrances, easements Security Interests securing Financial Indebtedness representing the purchase price (or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which are necessary for the conduct financing of the activities purchase price within 30 days after the respective purchase) of assets acquired after the Borrower Utilisation Date by the Parent and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in (other than the operation of the business of the Borrower and its Subsidiaries and other easements, covenants, restrictions, reservations, exceptions and other matters shown on any title insurance commitment or survey provided to the Administrative Agent prior to the date hereof and not objected to by the Administrative Agent prior to the date hereof;
(i) Liens securing the Obligations created or arising under the Loan Documents;
(j) Liens securing Debt incurred by the Borrower or any Subsidiary in connection with any NMTC TransactionReceivables Entity), provided that (i) any such Liens encumber lien attaches only to the assets acquired with so purchased, (ii) the proceeds Financial Indebtedness secured by any such lien does not exceed 100%, nor is less than 80% (unless the Finance Parties have a fully perfected second subordinated lien on such property pursuant to a Security Document), of the lesser of the fair market value or the purchase price of the property being purchased at the time of the incurrence of such DebtFinancial Indebtedness and (iii) the Financial Indebtedness secured thereby is permitted to be incurred pursuant to Clause 18.7(b)(ii) (Financial Indebtedness);
(xii) any lien on property or assets acquired pursuant to a Permitted Acquisition, or on property or assets of a Subsidiary of the Parent in existence at the time such Subsidiary is acquired pursuant to a Permitted Acquisition, provided that (i) any Financial Indebtedness that is secured by such lien is permitted to exist under Clause 18.7(b)(ii) (Financial Indebtedness), and (ii) such Liens are subordinated lien is not incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and do not attach to Liens securing the Obligations in a manner satisfactory to the Administrative Agentany other asset of Holdings or any of its Subsidiaries;
(kxiii) Liens securing Debt permitted under Section 6.22(e); provided that (i) such Liens do not at any time encumber any property other than restrictions imposed in the property financed by such Debt ordinary course of business and (ii) the Debt secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired consistent with past practices on the date sale or distribution of acquisitiondesignated inventory pursuant to agreements with customers under which such inventory is consigned by the customer or such inventory is designated for sale to one or more customers;
(lxiv) Liens securing judgments for the any lien in favour of customs or revenue authorities arising as a matter of law to secure payment of money customs duties in connection with the importation of goods;
(xv) any lien on the assets of a Foreign Subsidiary which is not a Subsidiary Guarantor securing Financial Indebtedness incurred by such Foreign Subsidiary in accordance with Clause 18.7 (Financial Indebtedness);
(xvi) any lien on assets (x) owned by Foreign Subsidiaries of the Parent securing permitted secured Financial Indebtedness of such Foreign Subsidiaries of the Parent and/or (y) consisting of equipment, receivables, inventory and Real Property owned by the Parent and/or one or appeal or other surety bonds relating more of its Foreign Subsidiaries securing permitted secured Financial Indebtedness of such persons pursuant to Clause 18.7(b)(xix) (Financial Indebtedness), provided that the aggregate fair market value of all such judgmentsassets as described in preceding clause (y) not constituting an Event securing Financial Indebtedness pursuant to Clause 18.7(b)(xix) (Financial Indebtedness) of Default under Section 8.01(jthe persons described in preceding clause (y) shall at no time exceed 150% of the outstanding principal amount of the Financial Indebtedness secured by such assets (which shall at no time exceed US$35,000,000); and
(mxvii) any other lien incidental to the conduct of the business or the ownership of the assets of the Parent or any Subsidiary of the Parent that (x) were not incurred in connection with borrowed money, (y) do not encumber any collateral or any Real Property owned by Holdings or any Subsidiary of Holdings and do not in the aggregate materially detract from the value of the assets subject thereto or materially impair the use thereof in the operation of such business and (z) do not secure obligations in excess of US$5,000,000 in the aggregate for all such liens;
(xviii) any Security Interest entered into pursuant to a Finance Document;
(xix) Permitted Encumbrances;
(xx) on and after the Accounts Receivable Facility Transaction Date, liens:
(A) granted by the Receivables Sellers in favour of the Receivables Entity consisting of UCC-1 financing statements filed to effect the sale of Accounts Receivable Facility Assets pursuant to the Replacement Receivables Facility Documents;
(B) granted by the Receivables Entity on those Accounts Receivable Facility Assets acquired by it pursuant to the Accounts Receivable Facility Documents to the extent that such liens are created by the Accounts Receivable Facility Documents; and
(C) consisting of the right of setoff granted by the Receivables Entity to any financial institution acting as a lockbox bank in connection with the Accounts Receivable Facility ;
(xxi) liens securing Permitted Refinancing Indebtedness permitted pursuant to Subclause (xv) above to the extent such Liens affecting property comply with an aggregate fair value not to exceed $5,000,000clause (b)(ii) of the definition of Permitted Refinancing Indebtedness.
Appears in 1 contract
Sources: Credit Facility Agreement (EnerSys)