Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, except: (a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi); (b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement); (c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business; (d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP; (e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP; (f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business; (g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole; (h) Liens existing on the Closing Date and set forth on Schedule 1.01(c); (i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary; (j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary; (k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01; (1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;
Appears in 3 contracts
Sources: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower will Company shall not, and the Borrower will shall not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by Liens referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 4.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (c) in Section 4.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 5% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 3 contracts
Sources: Twelfth Supplemental Indenture (Laboratory Corp of America Holdings), Eleventh Supplemental Indenture (Laboratory Corp of America Holdings), Senior Notes Indenture (Laboratory Corp of America Holdings)
Limitation on Liens. Holdings and the Borrower No Restricted Person will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset of its properties or property of Holdings, the Borrower or any Subsidiary assets now owned or hereafter acquired, except:except the following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedimposed by any Governmental Authority for taxes, thatassessments or charges not yet due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the books of any Restricted Person in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)accordance with GAAP;
(c) pledges or deposits in respect of workers’ compensation lawscash or securities under worker’s compensation, unemployment insurance laws or similar other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including, without limitation, Liens on property of any Restricted Person in the possession of storage facilities, pipelines or barges) arising in the ordinary course of business for amounts which are not more than 60 days past due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(e) deposits of cash or securities to secure the performance of bids, tenders, trade contracts (other than for the payment of Indebtedness) or borrowed money), leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or and appeal bonds, or deposits as security for contested taxes or import duties or for the payment performance bonds and other obligations of rent, in each case a like nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties property or Liens incidental to minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of any Restricted Person;
(g) rights reserved to or vested in any Governmental Authority by the Borrower and its Subsidiaries terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholecondemn or acquire by eminent domain or similar process;
(h) Liens existing on rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the Closing Date properties of any Restricted Person or the use thereof or the rights and set forth on Schedule 1.01(c)interests of any Restricted Person therein, in any manner under any and all Laws;
(i) rights reserved to the grantors of any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith;
(j) inchoate Liens in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.01;
(k) statutory Liens in respect of payables;
(l) any Lien existing on any property or shares of stock of a Subsidiary at prior to the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned acquisition thereof by the Borrower or any Subsidiary;
(j) Liens Subsidiary or existing on any property at of any Person that becomes a Subsidiary after the date hereof prior to the time the Borrower or such Person becomes a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary GuarantorSubsidiary; provided that (i) such Liens are Lien is not created in contemplation of or incurred in connection withwith such acquisition or such Person becoming a Subsidiary, or in contemplation ofas the case may be, (ii) such acquisition; provided, further, that the Liens may Lien shall not extend apply to any other property owned by of the Borrower or any Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be; and (iv) such Liens do not secure Indebtedness other than Permitted Priority Debt;
(km) Liens on cash margin collateral securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary Hedging Contracts permitted to be incurred in accordance with under Section 6.017.10;
(1n) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for operating leases covering only the account property subject thereto; and
(o) Liens in respect of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Permitted Priority Debt.
Appears in 3 contracts
Sources: Credit Agreement (Energy Transfer Partners, L.P.), Credit Agreement (Energy Transfer Partners, L.P.), Credit Agreement (Energy Transfer Partners, L.P.)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower will Company shall not, and the Borrower will shall not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by Liens referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 4.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (c) in Section 4.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 10% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 3 contracts
Sources: Sixteenth Supplemental Indenture (Laboratory Corp of America Holdings), Fifteenth Supplemental Indenture (Laboratory Corp of America Holdings), Thirteenth Supplemental Indenture (Laboratory Corp of America Holdings)
Limitation on Liens. Holdings and the Borrower will (a) Each Issuer shall not, and the Borrower will shall not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquiredacquired by such Issuer or any such Subsidiary, exceptexcept with respect to:
(ai) Liens securing or arising under or in connection with any Indebtedness of an Issuer not expressly by its terms subordinate or junior in right of payment to secure any other Indebtedness incurred under of such Issuer;
(ii) Liens existing on the date hereof;
(iii) Liens permitted by or required pursuant to the Credit Agreement;
(iv) Liens relating to judgments to the extent such judgments do not give rise to an Event of Default pursuant to Section 6.01(b)(xxi4.1(5);
(bv) Liens to secure Indebtedness incurred arising under or in connection with Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)9.1;
(cvi) Liens incurred in the ordinary course of business so long as the Indebtedness secured by such Lien does not exceed $5,000,000 at any one time outstanding;
(vii) Liens for taxes or assessments and similar charges either (x) not delinquent or (y) contested in good faith by appropriate proceedings and as to which either Issuer or a Subsidiary of either Issuer shall have set aside on its books such reserves as may be required pursuant to generally accepted accounting principles;
(viii) Liens incurred or pledges or and deposits in respect of connection with workers’ compensation laws' compensation, unemployment insurance laws or similar legislationand other social security benefits, or good faith deposits to secure securing performance bids, tenders, leases, contracts (other than for the payment repayment of Indebtedness) or leasesborrowed money), or deposits to secure public or statutory obligations, progress payments, surety and appeal bonds and other obligations or deposits of cash or U.S. government bonds to secure surety or appeal bondslike nature, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dix) Liens imposed by law, such as mechanics', carriers’, landlords’, suppliers’', warehousemen’s 's, materialmen's and mechanics’ vendors' Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested incurred in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gx) minor survey exceptions, minor encumbranceszoning restrictions, easements or reservations of, or rights of others for, licenses, rights-of-waycovenants, sewersreservations, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to on the use of real properties property or Liens incidental to the conduct minor irregularities of title incident thereto of any of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and Denny's Holdings Group which do not in the aggregate materially adversely affect detract from the value of the property or assets of the Denny's Holdings Group, taken as a whole, or of any of the Advantica Group which do not in the aggregate materially detract from the value of the property or assets the Advantica Group, taken as a whole, or materially impair the operation of the business of of, as applicable, either the Borrower and its SubsidiariesDenny's Holdings Group, taken as a whole, or the Advantica Group, taken as a whole;
(hxi) Liens existing on created by Subsidiaries in the Closing Date and set forth on Schedule 1.01(c)Denny's Holdings Group to secure Indebtedness of such Subsidiaries to any of Denny's Holdings Group or Liens created by Subsidiaries in the Advantica Group to secure Indebtedness of such Subsidiaries to any of the Advantica Group or the Denny's Holdings Group;
(ixii) pledges of or Liens on property raw materials or shares on manufactured products as security for any drafts or bills of stock exchange in connection with the importation of such raw materials or manufactured products in the ordinary course of business;
(xiii) a Subsidiary Lien on any assets (x) securing Indebtedness incurred or assumed pursuant to clause (ii) or (iii) or Section 3.11(b) hereof for the purpose of financing all or any part of the cost of acquiring such asset or construction thereof or thereon or (y) existing on assets or businesses at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by of the Borrower or any Subsidiaryacquisition thereof;
(jxiv) Liens on property at the time Lien granted to the Borrower or a Subsidiary Guarantor acquired Trustee pursuant to Section 5.6 hereof and any substantially equivalent Lien granted to the property, including any acquisition by means respective trustees under the indentures for other debt securities of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiaryeither Issuer;
(kxv) Liens arising in connection with any Mortgage Financing or Mortgage Refinancing by either Issuer or any of its Subsidiaries;
(xvi) Liens securing Indebtedness reimbursement obligations with respect to letters of credit issued for the account of either Issuer or other obligations any of its Subsidiaries in the ordinary course of business;
(xvii) any Lien on the Excluded Property;
(xviii) Liens securing an interest of a Subsidiary owing to landlord in real property leases; and
(xix) Liens created in connection with the Borrower or another Subsidiary refinancing of any Indebtedness secured by Liens permitted to be incurred or to exist pursuant to the foregoing clauses; provided, however, that no additional assets are encumbered by such Liens in accordance connection with such refinancing, unless permitted by clause (iii) above or Section 6.01;3.15(b) hereof.
(1b) Liens Notwithstanding the provisions of paragraph (a) above, an Issuer may create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, if such Issuer shall cause the Securities to be equally and ratably secured with any and all other Indebtedness secured by such Lien as long as any such other Indebtedness shall be so secured; provided that if such Lien ceases to exist, such equal and ratable Lien shall thereupon automatically cease. Notwithstanding anything in this Indenture to the contrary, in no event shall any Lien be incurred (i) securing Indebtedness outstanding pursuant to the Old Notes or (ii) on specific items any assets of inventory or other goods and proceeds the Denny's Holdings Group securing Indebtedness of any Loan Party securing of the Advantica Group (other than such Loan Party’s obligations in respect Indebtedness of bankers’ acceptances issued or created for any of the account Advantica Group which is also Indebtedness of such Loan Party to facilitate any of the purchase, shipment or storage of such inventory or other goods;Denny's Holdings Group).
Appears in 3 contracts
Sources: Indenture (Advantica Restaurant Group Inc), Indenture (Dennys Holdings Inc), Indenture (Dennys Holdings Inc)
Limitation on Liens. Holdings and Neither the Borrower Company will, nor will not, and the Borrower will not it permit any of the Subsidiaries Significant Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness in, of or on any asset or the property of Holdings, the Borrower Company or any Subsidiary now owned or hereafter acquiredof its Subsidiaries, except:
(ai) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);for taxes, assessments or governmental charges or levies on its property if the same shall not at the time be delinquent or thereafter can be paid without penalty or are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with generally accepted principles of accounting shall have been set aside on its books.
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dii) Liens imposed by law, such as carriers’, landlords’, suppliers’', warehousemen’s 's and mechanics’ Liens, rights of distraint ' liens and other similar Liens, liens arising in each case, for sums the ordinary course of business which secure payment of obligations not yet overdue for a period of more than thirty (30) 60 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment past due or which are being contested in good faith by appropriate proceedings, if proceedings and for which adequate reserves with respect thereto are maintained shall have been set aside on the books of the applicable Loan Party in accordance with GAAP;its books.
(fiii) Liens in favor arising out of issuers pledges or deposits under worker's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other encumbrances or charges against real property as are of performance and surety bonds or bid bonds or a nature generally existing with respect to other regulatory requirements properties of a similar character and which do not in any material way affect the marketability of the same or pledges interfere with the use thereof in the business of the Company or deposits securing payment of insurance premiumsits Subsidiaries.
(v) Liens on the capital stock, leases to which the Borrower or any of its Subsidiaries is a party partnership interest, or other similar obligations evidence of ownership of any Subsidiary or letters of credit issued such Subsidiary's assets that secure financings for such Subsidiary.
(vi) Purchase money liens upon or in property now owned or hereafter acquired in the ordinary course of its business;business (consistent with the Company's business practices) to secure (A) the purchase price of such property or (B) Indebtedness incurred solely for the purpose of financing the acquisition, construction, or improvement of any such property to be subject to such liens, or Liens existing on any such property at the time of 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 property other than the property being acquired, constructed, or improved and replacements, modifications, and proceeds of such property, and no such extension, renewal, or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed, or replaced.
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(hvii) Liens existing on the Closing Date and set forth on Schedule 1.01(c);date Securities are first issued hereunder.
(iviii) Liens on property for no more than 90 days arising from a transaction involving accounts receivable or shares third-party reimbursements of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by Company (including the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account sale of such Loan Party to facilitate accounts receivable or third-party reimbursements), where such accounts receivable or third-party reimbursements arose in the purchase, shipment or storage ordinary course of such inventory or other goods;the Company's business.
Appears in 3 contracts
Sources: Indenture (American Heritage Life Investment Corp), Indenture (Ingersoll Rand Co), Indenture Agreement (Owens Corning Capital Ii)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, including, without limitation, the Borrower or any Subsidiary stock of its Subsidiaries, whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
The following (bi) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in if the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges validity or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have been stayed and continue to be stayed or (ii) if a final judgment is entered and such judgment is discharged within thirty (30) days of entry, and in either case they do not materially impair the ability of the Borrower to perform its obligations hereunder or under the other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;Documents:
(eA) Claims or Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or due and payable or and subject to penalties for nonpayment interest or which are being contested in good faith penalty, provided that the Borrower maintains such reserves or other appropriate provisions as shall be required by appropriate proceedingsGAAP and pays all such taxes, if adequate reserves with respect thereto are maintained on assessments or charges forthwith upon the books commencement of the applicable Loan Party in accordance with GAAPproceedings to foreclose any such Lien;
(fB) Claims, Liens in favor or encumbrances upon, and defects of issuers title to, real or personal property including any attachment of performance and surety bonds personal or bid bonds real property or with respect other legal process prior to adjudication of a dispute on the merits; and
(C) Claims or Liens of mechanics, materialmen, warehousemen, carriers, or other regulatory requirements or statutory nonconsensual Liens;
(b) pledges or deposits securing payment in connection with workers' compensation, unemployment insurance and other social security legislation;
(c) deposits to secure the performance of insurance premiumsbids, leases to which the Borrower or any trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of its Subsidiaries is a party or other similar obligations or letters of credit issued like nature incurred in the ordinary course of its businessbusiness of the Borrower;
(gd) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business which, or zoning or other restrictions as to in the use of real properties or Liens incidental to aggregate, are not substantial in amount and which do not interfere with the ordinary conduct of the business of the Borrower;
(e) Liens which were in existence on the date hereof and shown on Schedule 6.3 and replacements, extensions or replacements thereof;
(f) Liens on assets acquired by the Borrower and its Subsidiaries or to in acquisitions permitted by Section 6.6 (which liens were in existence at the ownership time of their properties, in each casesuch acquisitions);
(g) Liens upon real property, which were not incurred in connection with Indebtedness and property was acquired after the Closing Date by the Borrower, each of which do not in Liens existed on such property before the aggregate materially adversely affect time of its acquisition or was created to finance, refinance or refund the business cost (including the cost of construction) of the respective property; provided, however, that no such Lien shall extend to or cover any accounts receivable or inventory under any circumstances or any property of the Borrower other than the respective property so acquired and its Subsidiariesimprovements thereon, taken as a wholeand the principal amount of indebtedness secured by any such Lien shall not exceed the fair market value of the respective property at the time it was acquired;
(h) Liens existing on Capital Leases as and to the Closing Date and set forth on Schedule 1.01(c);extent permitted under this Agreement; and
(i) Liens on property or shares Purchase Money Security Interests in capital equipment purchased in the ordinary course of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;business.
Appears in 3 contracts
Sources: Credit Agreement (Philadelphia Suburban Corp), Credit Agreement (Philadelphia Suburban Corp), Credit Agreement (Aqua America Inc)
Limitation on Liens. Holdings and the Borrower The Constituent Companies will not, and the Borrower will not permit any of the their Significant Subsidiaries to, directly or indirectlyincur, create, incur, assume or suffer permit to exist any Lien that secures obligations under on the capital stock or similar Equity Interests of or other ownership interests in any Indebtedness Significant Subsidiary or any Lien on any asset or property of Holdingsits other assets, the Borrower or any Subsidiary now owned or hereafter acquiredowned, except:
(a) Liens without effectively providing concurrently therewith to equally and ratably secure Indebtedness incurred the obligations of the Constituent Companies under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, thatthis Agreement and, in the case of Term Loan First Lien Collateralthe Company, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior Notes pursuant to documentation in form and substance reasonably satisfactory to the first-priority security interest intended to be created in favor of Required Holders, except the Collateral Agent for the benefit of the Term Loan Secured Parties following Liens (as defined in the Intercreditor Agreement);“Permitted Liens”):
(ca) pledges or deposits in respect of workers’ compensation lawsunder workmen’s compensation, unemployment insurance laws or similar legislationand social security laws, or good faith deposits to secure the performance of bids, tenders, contracts (other than for the payment repayment of Indebtedness) or borrowed money), leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or appeal bonds, or deposits as security indemnity, performance or other similar bonds, in the ordinary course of business for contested taxes sums not yet due and payable beyond any applicable grace or import duties cure period or for the payment of rentwhich is not at the time required by Section 9.4;
(b) Liens (other than any Lien imposed by ERISA) imposed by law, such as carriers’, warehousemen’s or mechanics’ liens, incurred in good faith in the ordinary course of business and securing obligations that are not yet due and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4, and Liens arising out of judgments or awards not exceeding $50,000,000 in the aggregate with respect to which appeals are being prosecuted, execution pending such appeals having been effectively stayed;
(c) the right reserved to, or vested in, any municipality or public authority by the terms of any right, power, franchise, grant, license, or permit, or by any provision of law, to purchase or recapture or designate a purchaser of any property;
(d) any Lien securing a tax, assessment or other governmental charge or levy or the claim of a materialman, mechanic, carrier, warehouseman or landlord for labor, materials, supplies or rentals incurred in the ordinary course of business, in each case, for sums not yet due and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4;
(e) any Lien existing on any property or asset at the time such property or asset is acquired by a Constituent Company or any Significant Subsidiary (including acquisition by merger or consolidation), but only if and so long as (1) such Lien was not created in contemplation of such property or asset being acquired, (2) such Lien is and will remain confined to the property or asset subject to it at the time such property or asset is acquired and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof and (3) such Lien secures only the obligation secured thereby at the time such property or asset is acquired;
(f) any Lien in existence on the date of this Agreement to the extent set forth on Schedule 10.3, but only, in the case of each such Lien, to the extent it secures an obligation outstanding on the date of this Agreement to the extent set forth on such Schedule;
(g) any Lien securing Purchase Money Indebtedness, or to secure payment of all or any part of the cost of construction of improvements as they are incurred or within 270 days thereafter, but only if, in the case of each such Lien, (1) such Lien shall at all times be confined solely to the property or asset the purchase price of which was financed through the incurrence of the Purchase Money Indebtedness secured by such Lien and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof and (2) such Lien attached to such property or asset within 270 days of the acquisition or improvement of such property or asset;
(h) easements, reservations, rights-of-way, restrictions, survey exceptions and other similar encumbrances as to real property which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not interfere in any material respect with the conduct of the business of a Constituent Company or any Significant Subsidiary conducted at the property subject thereto;
(i) licenses, leases and subleases of property owned or leased by a Constituent Company or any Significant Subsidiary not interfering with the ordinary conduct of the business of the Constituent Company and the Significant Subsidiaries;
(j) Liens securing obligations, neither assumed by a Constituent Company or any Significant Subsidiary nor on account of which a Constituent Company or any Significant Subsidiary customarily pays interest, upon real estate or under which a Constituent Company or any Significant Subsidiary has a right-of-way, easement, franchise or other servitude or of which a Constituent Company or any Significant Subsidiary is the lessee of the whole thereof or any interest therein for the purpose of locating transmission and distribution lines and related support structures, pipe lines, substations, measuring stations, tanks, pumping or delivery equipment or similar equipment;
(k) Liens arising by virtue of any statutory or common law or contractual provision relating to banker’s liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a depository institution in the ordinary course of business;
(dl) Liens imposed by lawany Lien constituting a renewal, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights extension or replacement of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
Lien permitted under clause (e) Liens for taxes), assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptionsof this Section 10.3, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
but only if (h1) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes Lien is granted and immediately after giving effect thereto, no Default or Event of Default would exist and be continuing, (2) such Lien is limited to all or a Subsidiary Guarantor; provided part of the property or asset that was subject to the Lien so renewed, extended or replaced and to improvements thereafter erected on or attached to such Liens are property or asset or any property or asset acquired in substitution or replacement thereof, (3) the principal amount of the obligations secured by such Lien does not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned exceed the principal amount of the obligations secured by the Borrower Lien so renewed, extended or replaced, together with reasonable out-of-pocket expenses and accrued interest with respect to the obligations so renewed, extended or replaced, and (4) the obligations secured by such Lien bear interest at a rate per annum not exceeding the rate borne by the obligations secured by the Lien so renewed, extended or replaced except for any Subsidiary;
(j) Liens on property increase that, in the reasonable opinion of the relevant Constituent Company, is commercially reasonable at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantorsuch increase; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(km) other Liens securing Indebtedness or other monetary obligations of a Subsidiary owing Constituent Company or any Significant Subsidiary; provided, that at the time any such Indebtedness or other monetary obligation is incurred (and after giving effect thereto and to the Borrower concurrent repayment of any Indebtedness or another Subsidiary permitted to be incurred in accordance other monetary obligations with Section 6.01;
the proceeds thereof), (1) in the case of the Parent Guarantor, the aggregate principal amount of all Indebtedness and other monetary obligations then secured pursuant to this clause (m) shall not exceed an amount equal to 15% of Consolidated Capitalization and (2) in the case of the Company, the aggregate principal amount of all Indebtedness and other monetary obligations of the Company and its Significant Subsidiaries then secured pursuant to this clause (m) shall not exceed an amount equal to 15% of the Company’s Consolidated Subsidiary Capitalization; and provided further that, notwithstanding the foregoing, neither Constituent Company will grant any Liens on specific items securing Indebtedness outstanding under a Principal Credit Agreement pursuant to this Section 10.3(m) unless and until all obligations of inventory or other goods the Constituent Companies under this Agreement and, in the case of the Company, the Notes shall concurrently be secured equally and proceeds of any Loan Party securing ratably with such Loan Party’s obligations Indebtedness pursuant to documentation in respect of bankers’ acceptances issued or created for form and substance reasonably satisfactory to the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 3 contracts
Sources: Note Purchase and Guaranty Agreement (Hawaiian Electric Co Inc), Note Purchase and Guaranty Agreement (Hawaiian Electric Industries Inc), Note Purchase and Guaranty Agreement (Hawaiian Electric Industries Inc)
Limitation on Liens. Holdings and the Borrower Infinity will not, and the Borrower will not permit any of the its Material Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on of its Property, or enter into any asset or property of HoldingsSale/Leaseback with respect to any such Property, the Borrower or any Subsidiary whether now owned or hereafter acquired; provided, exceptthat the foregoing restrictions shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any Governmental Authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in the books ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the applicable Loan Party extent, for an amount and for a period not resulting in accordance with GAAPan Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure surety, appeal or performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of money;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or minor imperfections in title thereto and Liens incidental to under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects with the ordinary conduct of the business of the Borrower Infinity and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(g) Liens on Property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity or any Subsidiary thereof; provided, that such Liens are or were in existence at the time such Person becomes or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereof, as the case may be, were not created in anticipation thereof other than to finance the purchase thereof and are not spread to cover any Property other than the Property covered at the time of the relevant transaction;
(h) Liens existing upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(c)was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, all or a part of the cost (including the cost of construction) of such Property or improvements thereon; provided, that no such Lien shall extend to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) Liens mortgages on property Property securing indebtedness in favor of the United States of America or shares any state thereof or any department, agency or instrumentality or political subdivision of stock the United States of a Subsidiary at America or any state thereof, incurred for the time purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such Subsidiary becomes a Subsidiary Guarantor; provided that mortgages (including without limitation such Liens are not created debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred in connection withto secure progress, advance or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend payments pursuant to any other property owned by the Borrower contract or provision of any Subsidiarystatute;
(j) Liens on property at the time the Borrower securing Indebtedness owed to Infinity or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiaryWholly Owned Subsidiary of Infinity;
(k) Liens securing (i) upon the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables and inventory in an aggregate amount not greater than $400,000,000 less the aggregate amount of Indebtedness that is secured pursuant to clause (ii) below; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or other obligations of a any Material Subsidiary owing (except to the Borrower extent of breaches of representations and warranties of Infinity or another Subsidiary permitted any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to be incurred secure Indebtedness of Infinity in accordance with Section 6.01an aggregate amount not greater than $125,000,000;
(1l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m);
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum of (i) the aggregate principal amount of the obligations secured by such Liens (other than Indebtedness as defined in clause (f) of the definition thereof which has not been assumed by Infinity or any of its Subsidiaries and where the Lien relates to Property acquired by Infinity or any of its Subsidiaries in satisfaction, in whole or in part, of indebtedness to Infinity or any of its Subsidiaries, in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstanding; and
(o) any extension, renewal or replacement of the foregoing; provided, however, that, except to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), the Liens permitted under this paragraph shall not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on specific items of inventory such Property or other goods and proceeds Property of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;equivalent value).
Appears in 3 contracts
Sources: Credit Agreement (Infinity Broadcasting Corp /De/), 364 Day Credit Agreement (Viacom Inc), Credit Agreement (Viacom Inc)
Limitation on Liens. Holdings Borrower and the Borrower will each Guarantor agrees that it shall not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset or property part of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:other than the following ("Permitted Liens"):
(a) Liens to secure Indebtedness incurred any Lien created under Section 6.01(b)(xxi)the Security Documents or any other Loan Document;
(b) Liens to secure Indebtedness incurred any usual and customary liens arising under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent Oil and Gas leases for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums royalty payments not yet overdue due and payable and reciprocal liens arising under operating agreements for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims joint interest ▇▇▇▇▇▇▇▇ not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, if which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto with adequate reserves with respect thereto set aside therefor;
(c) Liens for Taxes, fees, assessments or other governmental charges which are maintained on not delinquent or remain payable without penalty, or to the books extent that non-payment thereof is permitted by Section 7.07 or which are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the applicable Loan Party Property subject thereto with adequate reserves set aside therefore;
(d) carrier, warehousemen, mechanic, landlord, materialmen, repairmen or other similar statutory Liens arising in accordance the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto with GAAPadequate reserves set aside therefor;
(e) Liens consisting of pledges or deposits required in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewersrestrictions, electric lines, telegraph and telephone lines defects or other exceptions to title and other similar purposes, or zoning or other restrictions as to encumbrances incurred in the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were are not substantial in amount, are not incurred in connection with Indebtedness to secure Indebtedness, and which do not in any case materially detract from the aggregate materially adversely affect the business value of the Borrower and its Subsidiaries, taken as a whole;Property subject thereto or interfere with the ordinary conduct of the businesses of Borrower; and
(hg) Liens existing on the Closing Date arising solely by virtue of any statutory or common law provision relating to banker's liens, rights of set-off or similar rights and set forth on Schedule 1.01(c);
remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) Liens on property or shares such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by Borrower, (ii) Borrower maintains (subject to such right of stock of a Subsidiary at the time set-off) dominion and control over such Subsidiary becomes a Subsidiary Guarantor; provided that account(s), and (iii) such Liens are deposit account is not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend intended by Borrower to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing provide cash collateral to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;depository institution.
Appears in 2 contracts
Sources: Credit Agreement (Stroud Energy Inc), Credit Agreement (Stroud Energy Inc)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower will Company shall not, and the Borrower will shall not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by Liens referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 5.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (c) in Section 5.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 5% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 2 contracts
Sources: Tenth Supplemental Indenture (Laboratory Corp of America Holdings), Eighth Supplemental Indenture (Laboratory Corp of America Holdings)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower The Company will not permit any of the Subsidiaries to, directly create or indirectly, create, incur, assume incur or suffer to exist be incurred or to exist, any Lien that secures obligations under mortgage, pledge, security interest, encumbrance, lien or charge of any Indebtedness on any asset or property of Holdingskind upon the Mortgaged Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptor upon any income or proceeds therefrom, except the following:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedliens for property taxes and assessments or governmental charges or levies and liens securing claims or demands of mechanics and materialmen, thatprovided that payment thereof is not overdue or, in the case of Term Loan First Lien Collateralif overdue, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or is being contested in good faith by appropriate proceedings actions or other Liens arising out proceedings;
(b) liens of judgments or awards with resulting from any judgment or award, the time for the appeal or petition for rehearing of which shall not have expired, or in respect to of which the applicable Loan Party Company shall then at any time in good faith be proceeding with prosecuting an appeal or other proceedings proceeding for review, if adequate reserves with a review and in respect thereto are maintained on the books of which a stay of execution pending such Loan Party in accordance with GAAPappeal or proceeding for review shall have been secured;
(ec) Liens for taxesliens, assessments charges, encumbrances and priority claims incidental to the conduct of business or the ownership of properties and assets (including warehousemen’s and attorneys’ liens and statutory landlords’ liens) and deposits, pledges or liens to secure payment of premiums on insurance purchased in the usual course of business or in connection with self-insurance or in connection with workmen’s compensation, unemployment insurance or social security legislation, or to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other governmental charges or claims liens of like general nature incurred in the ordinary course of business and not yet in connection with the borrowing of money, provided in each case, the obligation secured is not overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are or, if overdue, is being contested in good faith by appropriate actions or proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations of, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each casewhich encumbrances, which were not incurred in connection with Indebtedness easements, reservations, rights and which restrictions do not in the aggregate materially adversely affect detract from the value of said properties or materially impair their use in the operation of the business of the Borrower Company;
(e) the lien of this Mortgage;
(f) the lien of the Lease, subject to the SNDA Agreement;
(g) the lien of any permitted sublease from the Tenant, as sublessor, to any Person, as sublessee; provided that the lien thereof shall be subject to the terms of the Lease and its Subsidiaries, taken as a wholethe SNDA Agreement;
(h) Liens existing on easements, rights of way, reservations, restrictive agreements, servitudes and rights of others against the Closing Date Mortgaged Property and set forth any other matters which are listed on Schedule 1.01(c);B to the ALTA Title Insurance Policy delivered to the Mortgagee following the issuance and delivery of the Note; and
(i) Liens on property utility easements, rights of way or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created reservations granted or incurred to be granted to service providers in connection withwith the development of the Mortgaged Property, which such utility easements, rights of way or reservations do not in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned the aggregate detract from or impair the value of or use of the Mortgaged Property and have been approved in writing by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Tenant.
Appears in 2 contracts
Sources: Mortgage Agreement (Blue Ridge Real Estate Co), Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing Statement (Blue Ridge Real Estate Co)
Limitation on Liens. Holdings and the Borrower will notNo Obligor shall, and the Borrower will not or shall permit any of the its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset part of its property or property of Holdingsassets, the Borrower or any Subsidiary including real estate, whether now owned or hereafter acquired, except:or offer or agree to do so, other than the following ("Permitted Liens"):
(a) Liens to secure Indebtedness incurred any Lien created under Section 6.01(b)(xxi)any Credit Document;
(b) any Lien (other than Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in on the case of Term Loan First Lien Collateral, ) existing on the Liens property of the collateral agent under Company or its Subsidiaries on the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created Closing Date and specifically set forth in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Schedule 9.1 securing Indebtedness outstanding on such date;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or claims which remain payable without penalty, or to the extent that non-payment thereof is permitted by Section 8.6, provided that no Notice of Lien has been filed or recorded;
(d) Carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or other similar Liens arising in the ordinary course of business which are not yet overdue for a period of more than thirty (30) days delinquent or remain payable or subject to penalties for nonpayment without penalty or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained ;
(e) Liens (other than any Lien imposed by ERISA) on the books property of the applicable Loan Party Company or any of its Subsidiaries incurred, or pledges or deposits required, in accordance connection with GAAPworker's compensation, unemployment insurance and other social security legislation;
(f) Liens in favor on the property of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower Company or any of its Subsidiaries is securing (i) the performance of bids, trade contracts (other than for borrowed money), leases or statutory obligations, (ii) obligations on surety and appeal bonds, and (iii) other obligations of a party or other similar obligations or letters of credit issued like nature incurred in the ordinary course of its business, provided that all such Liens in the aggregate have no reasonable likelihood of causing a Material Adverse Effect;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licensesEasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposes, or zoning or other restrictions as to encumbrances incurred in the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were are not incurred substantial in connection with Indebtedness amount, and which do not in any case materially detract from the aggregate materially adversely affect the business value of the Borrower property subject thereto or interfere with the ordinary conduct of the businesses of the Company and its Subsidiaries, taken as a whole;
(h) Purchase money Liens existing or purchase money security interests on any property acquired or held by the Closing Date and set forth on Schedule 1.01(c)Company or its Subsidiaries in the ordinary course of business, other than the Collateral, securing Indebtedness permitted pursuant to Section 9.4(f) which was incurred or assumed for the purpose of financing all or any part of the cost of acquiring such property, provided that any such Lien attaches to such property concurrently with or within 30 days after the acquisition thereof;
(i) Liens on any property (other than the Collateral) securing Indebtedness permitted pursuant to Section 9.4(h) or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary GuarantorSection 9.9(c); provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(j) Liens on any property at (other than the time the Borrower or a Subsidiary Guarantor acquired the property, including Collateral) to secure permitted Capital Lease Obligations (but not to secure any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; corporate guarantee related thereto) provided that the property subject to such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that is the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing subject to the Borrower or another Subsidiary permitted leasing arrangements related to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Capital Lease Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Willbros Group Inc), Credit Agreement (Willbros Group Inc)
Limitation on Liens. Holdings and the Borrower (a) The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire or permit any Restricted Subsidiary to acquire any property or assets pursuant to conditional sales agreements or other title retention devices, except:
(a1) Liens 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 time required by Section 5.3;
(2) Liens of or resulting from any judgment or award, the time for the appeal or petition for rehearing of which shall not have expired, or in respect of which the Company or a Restricted Subsidiary shall at any time in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(3) Liens incidental to the conduct of business or the ownership of properties and assets (including, without limitation, warehousemen's and attorneys' liens, statutory landlords' liens, workers' compensation liens and ERISA liens) and deposits, pledges or Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens the performance of bids, tenders or trade contracts, or to secure Indebtedness incurred under Section 6.01(b)(i); providedstatutory obligations, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rent, in each case like general nature incurred in the ordinary course of business;
(d) Liens imposed by lawbusiness and not in connection with the borrowing of money; provided that the aggregate amount of the obligations so secured will not materially impair the value of the assets so secured or the use thereof in the ordinary course of business and provided, such as carriers’further, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, that in each case, for sums the obligation so secured will not yet exceed $1,000,000 and is not overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g4) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company and its Restricted Subsidiaries or which customarily exist on properties of Persons 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 Company and its Subsidiaries Restricted Subsidiaries;
(5) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to an Eighty Percent-Owned Restricted Subsidiary;
(6) Liens existing as of the ownership date of their properties, this Agreement securing Indebtedness of the Company or any Restricted Subsidiary outstanding on such date and described on Schedule II attached to this Agreement;
(7) Liens incurred after the date of this Agreement given to secure the payment of the cost of the acquisition or construction of fixed assets useful and intended to be used in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect carrying on the business of the Borrower Company or a Restricted Subsidiary; provided that (i) the Lien shall attach solely to the fixed assets acquired or constructed, (ii) the Lien shall have been created or incurred within twelve (12) months of the date of acquisition or the date of completion of construction, as the case may be, of such fixed assets, (iii) at the time of the acquisition or construction of such fixed assets the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such fixed assets whether or not assumed by the Company or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the total cost or fair market value at the time of acquisition or completion of construction of such fixed assets (as determined in good faith by the Board of Directors of the Company) and its Subsidiaries, taken as a whole(iv) all such Indebtedness shall have been incurred within the applicable limitations of Section 5.6;
(h) 8) Liens existing on any assets at the Closing Date time of acquisition thereof or at the time of acquisition by the Company or a Restricted Subsidiary of any business entity then owning such assets, whether or not such existing Liens were given to secure the payment of the purchase price of the assets to which they attach, so long as they were not incurred, extended or renewed in contemplation of such acquisition; provided that (i) any such Lien shall attach solely to the assets acquired or the assets of such business entity and set forth (ii) at the time of the acquisition of the assets or business entity, as the case may be, the aggregate amount remaining unpaid on Schedule 1.01(call Indebtedness secured by Liens on such assets (whether or not assumed by the Company or such Restricted Subsidiary) shall not be in excess of the fair market value of such assets at the time of such acquisition (as determined in good faith by the Board of Directors of the Company);
(i9) Liens on property incurred after the date of this Agreement given to secure Funded Debt of the Company or shares of stock of a any Restricted Subsidiary at in addition to the time such Subsidiary becomes a Subsidiary GuarantorLiens permitted by the preceding clauses (1) through (8) hereof; provided that all Indebtedness secured by such Liens are not created shall have been incurred within the applicable limitations of Section 5.6; and
(10) any extension, renewal or incurred replacement of any Lien permitted by the preceding clauses (6), (7) and (8) of this Section 5.7 in respect of the same property theretofore subject to such Lien in connection withwith the extension, renewal or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by refunding of the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary GuarantorIndebtedness secured thereby; provided that (i) such Liens Lien shall attach solely to the same such property and (ii) such extension, renewal or refunding of such Indebtedness shall have been incurred within the applicable limitations of Section 5.6.
(b) In the event any property or assets of the Company or any Restricted Subsidiary are subjected to a Lien not created otherwise permitted by this Section 5.7, the Company will make or incurred cause to be made provision whereby the Notes will be secured, to the full extent permitted under applicable law, equally and ratably with all other obligations secured thereby, and in connection withany case the Notes shall (but only in such event) have the benefit, to the full extent that the holders may be entitled thereto under applicable law, of an equitable Lien on such property or assets equally and ratably securing the Notes. Compliance with the provisions of this paragraph shall not be deemed to constitute a waiver of, or in contemplation ofconsent to, such acquisition; provided, further, that any Default or Event of Default caused by any violation of the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations provisions of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with this Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;5.7.
Appears in 2 contracts
Sources: Note Agreement (Johnson Worldwide Associates Inc), Note Agreement (Johnson Worldwide Associates Inc)
Limitation on Liens. Holdings and the The Borrower will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under 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 time required by Section 6.01(b)(xxi)5.08;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Borrower or a Restricted Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation lawsconnection with worker’s compensation, unemployment insurance laws and other like laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens) and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rentlike general nature, in each any such case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities 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 or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(he) Liens securing Indebtedness of a Restricted Subsidiary to the Borrower or to another Wholly-owned Restricted Subsidiary;
(f) Liens existing on the Closing Date and set forth date hereof as scheduled on Schedule 1.01(c)6.03 annexed hereto;
(ig) Liens on property fixed or shares of stock of a Subsidiary at capital assets acquired, constructed or improved by the time such Subsidiary becomes a Subsidiary GuarantorBorrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 6.02, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not created exceed 100% of the cost of acquiring, constructing or incurred in connection with, improving such fixed or in contemplation of, capital assets and (iv) such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may security interests shall not extend apply to any other property owned by or assets of the Borrower or any Subsidiary;
(jh) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Other Liens securing Indebtedness or other obligations than as described in the foregoing clauses (a) through (g) above, provided that the Indebtedness secured by all such other Liens does not exceed at any time ten percent of a Subsidiary owing to the total consolidated assets of the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;its Restricted Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Cubic Corp /De/), Credit Agreement (Cubic Corp /De/)
Limitation on Liens. Holdings The Company and the Borrower will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, 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 to secure Indebtedness incurred under for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen, provided payment thereof is not at the time required by Section 6.01(b)(xxi)5.3;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Restricted Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation lawsconnection with worker's compensation, unemployment insurance laws and other like laws, warehousemen's and attorneys' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rent, in each case like general nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company 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 Company and its Subsidiaries Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to the ownership another Wholly-owned Restricted Subsidiary;
(f) Liens on shares of their propertiesstock of Unrestricted Subsidiaries;
(g) Liens existing as of January 1, in each case, which were not incurred in connection with Indebtedness 1998 and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;reflected on Exhibit 5.10 hereto.
(h) Liens existing on incurred after the Closing Date given to secure the payment of the purchase price incurred in connection with (and set forth within twelve months of) the acquisition after the Closing Date of fixed assets useful and intended to be used in carrying on Schedule 1.01(cthe business of the Company or a Restricted Subsidiary, including Liens existing on such fixed assets at the time of acquisition thereof or at the time of acquisition by the Company or a Restricted Subsidiary of any business entity then owning such fixed assets, whether or not such existing Liens were given to secure the payment of the purchase price of the fixed assets to which they attach so long as they were not incurred, extended or renewed in contemplation of such acquisition, provided that (i) the Lien shall attach solely to the fixed assets acquired or purchased, (ii) at the time of acquisition of such fixed assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such fixed assets whether or not assumed by the Company or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition of such fixed assets (as determined in good faith by the Board of Directors of the Company);, and (iii) all such Indebtedness shall have been incurred within the other applicable limitations of Section 5.8 and Section 5.9; and
(i) Liens, in addition to those permitted by Section 5.10(a) through (h) above, securing Debt of the Company or any Restricted Subsidiary (including, without limitation, Liens on property securing obligations of the Company or shares of stock of a any Restricted Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantorunder any operating lines or short-term or revolving bank facilities); provided that after giving effect to the incurrence of all Debt secured by such Liens are (i) the aggregate principal amount of Priority Debt shall not created or exceed an amount equal to 20% of Consolidated Net Worth and (ii) all such Debt shall have been incurred in connection with, or in contemplation of, such within the other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiaryapplicable limitations of Section 5.8 and Section 5.9;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Intertape Polymer Group Inc), Revolving Credit Agreement (Intertape Polymer Group Inc)
Limitation on Liens. Holdings and the Borrower The Constituent Companies will not, and the Borrower will not permit any of the their Significant Subsidiaries to, directly or indirectlyincur, create, incur, assume or suffer permit to exist any Lien that secures obligations under on the capital stock or similar Equity Interests of or other ownership interests in any Indebtedness Significant Subsidiary or any Lien on any asset or property of Holdingsits other assets, the Borrower or any Subsidiary now owned or hereafter acquiredowned, except:
(a) Liens without effectively providing concurrently therewith to equally and ratably secure Indebtedness incurred the obligations of the Constituent Companies under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, thatthis Agreement and, in the case of Term Loan First Lien Collateralthe Company, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior Notes pursuant to documentation in form and substance reasonably satisfactory to the first-priority security interest intended to be created in favor of Required Holders, except the Collateral Agent for the benefit of the Term Loan Secured Parties following Liens (as defined in the Intercreditor Agreement);“Permitted Liens”):
(ca) pledges or deposits in respect of workers’ compensation lawsunder workmen’s compensation, unemployment insurance laws or similar legislationand social security laws, or good faith deposits to secure the performance of bids, tenders, contracts (other than for the payment repayment of Indebtedness) or borrowed money), leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or appeal bonds, or deposits as security indemnity, performance or other similar bonds, in the ordinary course of business for contested taxes sums not yet due and payable beyond any applicable grace or import duties cure period or for the payment of rentwhich is not at the time required by Section 9.4;
(b) ▇▇▇▇▇ (other than any Lien imposed by ▇▇▇▇▇) imposed by law, such as carriers’, warehousemen’s or mechanics’ liens, incurred in good faith in the ordinary course of business and securing obligations that are not yet due and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4, and Liens arising out of judgments or awards not exceeding $50,000,000 in the aggregate with respect to which appeals are being prosecuted, execution pending such appeals having been effectively stayed;
(c) the right reserved to, or vested in, any municipality or public authority by the terms of any right, power, franchise, grant, license, or permit, or by any provision of law, to purchase or recapture or designate a purchaser of any property;
(d) any Lien securing a tax, assessment or other governmental charge or levy or the claim of a materialman, mechanic, carrier, warehouseman or landlord for labor, materials, supplies or rentals incurred in the ordinary course of business, in each case, for sums not yet due and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4;
(e) any Lien existing on any property or asset at the time such property or asset is acquired by a Constituent Company or any Significant Subsidiary (including acquisition by merger or consolidation), but only if and so long as (1) such Lien was not created in contemplation of such property or asset being acquired, (2) such Lien is and will remain confined to the property or asset subject to it at the time such property or asset is acquired and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof and (3) such Lien secures only the obligation secured thereby at the time such property or asset is acquired;
(f) any Lien in existence on the date of this Agreement to the extent set forth on Schedule 10.3, but only, in the case of each such Lien, to the extent it secures an obligation outstanding on the date of this Agreement to the extent set forth on such Schedule;
(g) any Lien securing Purchase Money Indebtedness, or to secure payment of all or any part of the cost of construction of improvements as they are incurred or within 270 days thereafter, but only if, in the case of each such Lien, (1) such Lien shall at all times be confined solely to the property or asset the purchase price of which was financed through the incurrence of the Purchase Money Indebtedness secured by such Lien and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof and (2) such Lien attached to such property or asset within 270 days of the acquisition or improvement of such property or asset;
(h) easements, reservations, rights-of-way, restrictions, survey exceptions and other similar encumbrances as to real property which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not interfere in any material respect with the conduct of the business of a Constituent Company or any Significant Subsidiary conducted at the property subject thereto;
(i) licenses, leases and subleases of property owned or leased by a Constituent Company or any Significant Subsidiary not interfering with the ordinary conduct of the business of the Constituent Company and the Significant Subsidiaries;
(j) Liens securing obligations, neither assumed by a Constituent Company or any Significant Subsidiary nor on account of which a Constituent Company or any Significant Subsidiary customarily pays interest, upon real estate or under which a Constituent Company or any Significant Subsidiary has a right-of-way, easement, franchise or other servitude or of which a Constituent Company or any Significant Subsidiary is the lessee of the whole thereof or any interest therein for the purpose of locating transmission and distribution lines and related support structures, pipe lines, substations, measuring stations, tanks, pumping or delivery equipment or similar equipment;
(k) Liens arising by virtue of any statutory or common law or contractual provision relating to banker’s liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a depository institution in the ordinary course of business;
(dl) Liens imposed by lawany Lien constituting a renewal, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights extension or replacement of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
Lien permitted under clause (e) Liens for taxes), assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptionsof this Section 10.3, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
but only if (h1) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes Lien is granted and immediately after giving effect thereto, no Default or Event of Default would exist and be continuing, (2) such Lien is limited to all or a Subsidiary Guarantor; provided part of the property or asset that was subject to the Lien so renewed, extended or replaced and to improvements thereafter erected on or attached to such Liens are property or asset or any property or asset acquired in substitution or replacement thereof, (3) the principal amount of the obligations secured by such Lien does not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned exceed the principal amount of the obligations secured by the Borrower Lien so renewed, extended or replaced, together with reasonable out-of-pocket expenses and accrued interest with respect to the obligations so renewed, extended or replaced, and (4) the obligations secured by such Lien bear interest at a rate per annum not exceeding the rate borne by the obligations secured by the Lien so renewed, extended or replaced except for any Subsidiary;
(j) Liens on property increase that, in the reasonable opinion of the relevant Constituent Company, is commercially reasonable at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantorsuch increase; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(km) other Liens securing Indebtedness or other monetary obligations of a Subsidiary owing Constituent Company or any Significant Subsidiary; provided, that at the time any such Indebtedness or other monetary obligation is incurred (and after giving effect thereto and to the Borrower concurrent repayment of any Indebtedness or another Subsidiary permitted to be incurred in accordance other monetary obligations with Section 6.01;
the proceeds thereof), (1) in the case of the Parent Guarantor, the aggregate principal amount of all Indebtedness and other monetary obligations then secured pursuant to this clause (m) shall not exceed an amount equal to 15% of Consolidated Capitalization and (2) in the case of the Company, the aggregate principal amount of all Indebtedness and other monetary obligations of the Company and its Significant Subsidiaries then secured pursuant to this clause (m) shall not exceed an amount equal to 15% of the Company’s Consolidated Subsidiary Capitalization; and provided further that, notwithstanding the foregoing, neither Constituent Company will grant any Liens on specific items securing Indebtedness outstanding under a Principal Credit Agreement pursuant to this Section 10.3(m) unless and until all obligations of inventory or other goods the Constituent Companies under this Agreement and, in the case of the Company, the Notes shall concurrently be secured equally and proceeds of any Loan Party securing ratably with such Loan Party’s obligations Indebtedness pursuant to documentation in respect of bankers’ acceptances issued or created for form and substance reasonably satisfactory to the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 2 contracts
Sources: Note Purchase and Guaranty Agreement (Hawaiian Electric Industries Inc), Note Purchase and Guaranty Agreement (Hawaiian Electric Co Inc)
Limitation on Liens. Holdings and the Borrower will The Company shall not, and the Borrower will not nor shall it permit ------------------- any of the its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset part of its property or property of Holdingsassets, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:or offer or agree to do so, other than the following ("Permitted Liens"):
(a) Liens to secure Indebtedness incurred created under Section 6.01(b)(xxi)this Agreement;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or other similar Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, arising in the case ordinary course of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created business which are not delinquent or remain payable without penalty or which are being contested in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)good faith and by appropriate proceedings;
(c) Liens (other than any Lien imposed by ERISA) on the property of the Company or any of its Subsidiaries incurred, or pledges or deposits required, in respect of workers’ compensation lawsconnection with workmen's compensation, unemployment insurance laws or similar and other social security legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or securing taxes that remain payable or subject to penalties for nonpayment without penalty or which are being contested in good faith by appropriate proceedings, if adequate proceedings where collection thereof is stayed; provided that the Company has set aside on its books reserves -------- with respect thereto are maintained to such taxes (segregated to the extent required by GAAP) deemed by it to be adequate;
(e) Purchase money security interests on any property acquired or held by the books Company in the ordinary course of business securing Indebtedness incurred or assumed for the purpose of financing all or any part of the applicable Loan Party cost of acquiring such property; provided that any such Lien attaches to such property -------- concurrently with or within 90 days after the acquisition thereof and provided that the principal amount of the Indebtedness secured by any such purchase money security interests shall not in accordance with GAAPthe aggregate exceed 2.5% of the Consolidated Capitalization of the Company and its Subsidiaries;
(f) Liens in favor Any right which any municipal or governmental body or agency may have by virtue of issuers any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any property of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing the Company upon payment of insurance premiumsreasonable compensation therefor or to terminate any franchise, leases to which the Borrower or any of its Subsidiaries is a party license or other similar obligations rights or letters to regulate the property and business of credit issued in the ordinary course of its businessCompany;
(g) minor survey exceptionsAny liens, minor encumbrancesneither assumed by the Company nor on which it customarily pays interest, easements or reservations of, existing upon real estate or rights of others forin or relating to real estate acquired by the Company for sub-station, licensesmeasuring station, rightsregulating station, gas purification station, compressor station, transmission line, distribution line or right-of-wayway purposes;
(h) Easements or reservations in any property of the Company for the purpose of roads, sewerspipe lines, gas transmission and distribution lines, electric light and power transmission and distribution lines, telegraph and telephone lines water mains and other similar like purposes, or and zoning or other ordinances, regulations and restrictions as to which do not impair the use of real properties or Liens incidental to such property in the conduct operation of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);Company; and
(i) Liens on property or shares of stock of a Subsidiary not otherwise permitted by this Section 7.1 if at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation ----------- of, and after giving effect to, the creation or assumption of any such other Person becoming such a Subsidiary Guarantor; providedLien, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means aggregate of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other all obligations of a Subsidiary owing to the Borrower or another Subsidiary Company secured by any Liens not otherwise permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items hereby does not exceed 5% of inventory or other goods the Consolidated Capitalization of the Company and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;its Subsidiaries.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Oneok Inc /New/), Credit Agreement (Oneok Inc /New/)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien that secures obligations under of any Indebtedness kind on any asset property owned by the Company or property such Subsidiary; provided that the foregoing shall not apply to nor operate to prevent (each of Holdingsthe following, the Borrower or any Subsidiary now owned or hereafter acquired, except:a “Permitted Lien”):
(a) Liens to secure Indebtedness incurred under for taxes, assessments, governmental charges or levies; provided that payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens arising under statutes or by operation of law, Liens in connection with worker’s compensation, unemployment insurance, social security and other similar laws (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedthe performance of bids, thattenders, trade, government or other similar contracts, obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, or other Liens of like general nature, in any such case incurred in the case ordinary course of Term Loan First business and not in connection with the creation or incurrence of Indebtedness; provided that (i) any such Lien Collateral, secures only amounts not due and payable or the Liens payment of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the business of the collateral agent under Company and its Subsidiaries taken as a whole or the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor value of the Collateral Agent related property for the benefit purposes of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)such business;
(c) pledges mechanics’, workmen’s, materialmen’s, attorney’s, landlords’, carriers’ or deposits other similar Liens arising in the ordinary course of business and not in connection with the creation or incurrence of Indebtedness and in each such case with respect to obligations which are not due or that are bonded or that are being contested in good faith by appropriate proceedings;
(d) Liens of or resulting from any court proceeding, judgment or award, (i) the time for the appeal or petition for rehearing of which shall not have expired, or (ii) in respect of workers’ compensation lawswhich the Company or a Subsidiary shall be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; provided that the Company or such Subsidiary (1) is contesting such proceeding, unemployment insurance laws judgment or similar legislationaward on a timely basis, in good faith and by appropriate proceedings, and (2) has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary, as the case may be;
(e) Liens securing Indebtedness of a Subsidiary to the Company or to another Wholly-owned Subsidiary;
(f) Liens existing as of the date of the Closing and described on Schedule 5.15(b) hereto;
(g) Liens on property of the Company or any of its Subsidiaries created solely for the purpose of securing purchase money indebtedness (including in connection with the acquisition, construction or improvement of property) or Capitalized Lease Obligations and, representing or incurred to finance, refinance or refund the purchase price of property; provided that no such Lien shall extend to or cover other property of the Company or such Subsidiary other than the respective property so acquired, constructed or improved, and the principal amount of indebtedness secured by any such Lien shall at no time exceed the total purchase price (or cost of construction or improvement) of such property;
(h) Liens existing on property of a Person at the time such Person is consolidated with or merged into the Company or a Subsidiary or becomes a Subsidiary, or good faith 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 (i) 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, (ii) 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 which is an improvement to or is acquired for specific use in connection with such acquired property;
(i) customary rights of set off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code in favor of banks or other financial institutions where the Company or any Subsidiary maintains deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dj) Liens imposed by lawconstituting (i) survey restrictions, such as carriers’encumbrances in the nature of zoning restrictions, landlords’condemnations, suppliers’easements, warehousemen’s and mechanics’ Liensencroachments, covenants, rights of distraint way, defects, irregularities and other similar Liens, in each case, for sums not yet overdue for a period rights or restrictions of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained record on the books title or use of such Loan Party in accordance with GAAP;
real property, and (eii) Liens for taxesleases, assessments subleases, licenses or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject sublicenses granted to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued others in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights business and Liens covering property subject to any lease which was not entered into in violation of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning this Agreement securing the interest of the lessor or other restrictions as to Person under such lease, which in any such case does not materially detract from the value of the subject property or materially impair the use of real properties or Liens incidental to the conduct of thereof in the business of the Borrower Company and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(hk) Liens existing on any encumbrance or restriction (including, but not limited to, put and call agreements, rights of first refusal, and voting or equity holder agreements) with respect to equity or ownership interests in any joint venture or similar arrangement pursuant to any joint venture or similar agreement in any such case not entered into in connection with the Closing Date and set forth on Schedule 1.01(c)creation or incurrence of Indebtedness;
(l) Liens other than those permitted by any of the foregoing subsections (a) through (k); provided that all Indebtedness secured by any such Liens, in the aggregate with all other Consolidated Priority Indebtedness at such time, does not exceed 15% of Consolidated Total Capitalization, calculated in accordance with Agreement Accounting Principles; and
(m) any extension, renewal or replacement of any Lien permitted by the preceding clauses (e), (f), (g) and (h) of this Section 10.4; provided that (i) Liens no additional property (other than improvements thereon) shall be encumbered by such Liens, (ii) the unpaid principal amount of Indebtedness secured thereby shall not be increased on property or shares after the date of stock of a Subsidiary such extension, renewal or replacement and (iii) at the time of such extension, renewal or replacement and after giving effect thereto, no Default or Event of Default would exist, including, without limitation, under Sections 10.1, 10.2 and 10.3, with any calculation of compliance therewith to be made as of the end of the immediately preceding fiscal quarter after giving pro forma effect to the extension, renewal or replacement of such Lien. Notwithstanding anything to the contrary contained herein, the Company covenants that it will not, and will not permit any Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created to, create, incur or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend permit to exist any other Lien of any kind on any property owned by the Borrower Company or such Subsidiary to secure any Subsidiary;
(j) Liens on property at Indebtedness of the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that under the Liens may not extend to any Bank Credit Agreement unless the Notes and all other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other respective obligations of the Obligors under this Agreement and of the Subsidiary Guarantors under any Subsidiary Guaranty, as applicable, are secured on a Subsidiary owing pari passu basis by a lien on such property pursuant to documentation, including an intercreditor agreement, in form and substance reasonably satisfactory to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 2 contracts
Sources: Note Purchase Agreement (Gallagher Arthur J & Co), Note Purchase Agreement (Gallagher Arthur J & Co)
Limitation on Liens. Holdings and the Borrower will notNo Loan Party shall, and the Borrower will not nor shall it permit any of the its Restricted Subsidiaries to, directly or indirectlyincur, create, incurassume, assume or suffer permit to exist any Lien that secures obligations under upon any Indebtedness on any asset of its Property, assets, or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Administrative Agent for the benefit of the Term Loan Secured Parties Parties;
(as defined in the Intercreditor Agreement)b) existing Liens disclosed on Schedule 7.2;
(c) pledges or deposits in respect encumbrances consisting of workers’ compensation lawseasements, unemployment insurance laws or similar legislationRights of Way, zoning restrictions, or good faith deposits other similar encumbrances or restrictions on the use of real Property that do not (individually or in the aggregate) materially detract from the value of the assets encumbered thereby or materially impair the ability of any Loan Party or its Restricted Subsidiaries to secure bidsuse or operate such assets in their respective businesses, tendersand none of which is violated in any material respect by existing or proposed structures or land use or operation;
(d) Liens of mechanics, contracts (other than for the payment of Indebtedness) or leasesmaterialmen, warehousemen, carriers, or deposits to secure public or other similar statutory Liens securing obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums business that are not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if proceedings diligently pursued and for which adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPGAAP have been established and for which either (i) such contest operates to suspend the enforcement of any foreclosure or levy on any Property of any Loan Party or any of its Restricted Subsidiaries or (ii) no action to enforce any of such Liens has been commenced;
(e) Liens resulting from good faith deposits to secure payments of workmen’s compensation or other social security programs (other than Liens imposed by ERISA) or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, contracts (other than for payment of Debt), or leases made in the ordinary course of business;
(f) Liens in favor securing judgments or orders for the payment of issuers money not constituting an Event of performance and Default or securing appeal or other surety bonds related to such judgments;
(g) leases, licenses, subleases, or bid bonds or with respect sublicenses granted to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued others in the ordinary course of its businessbusiness which do not (A) interfere in any material respect with the business of the Loan Parties, taken as a whole or (B) secure any Debt for borrowed money;
(gh) minor survey exceptionsLiens in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;
(i) any interest or title of a lessor, minor encumbrancessublessor, easements or reservations oflicensor, or rights of others forsublicensor under leases, subleases, licenses, rights-of-wayor sublicenses entered into by any Loan Party in the ordinary course of business, sewersand any precautionary Uniform Commercial Code financing statements filed in respect of such interest or title in the affected asset(s);
(j) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by any Loan Party in connection with any letter of intent or purchase agreement;
(k) zoning, electric linesbuilding, telegraph and telephone lines entitlement, and other similar purposesland use regulations by Governmental Authorities with which the normal operation of the business materially complies, and any non-contractual zoning, order, decree, restriction, condition, permit, or zoning similar law or other restrictions as right reserved to or vested in any Governmental Authority to control or regulate the use of any real properties or Liens incidental to property that do not materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries nor materially adverse impact the value or to the ownership use of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiariesreal Property pledged as Collateral, taken as a whole;
(hl) Liens existing on insurance policies and the Closing Date proceeds thereof securing the financing of the premiums with respect thereto; provided that, such Liens are subject to any loss payee interests in favor of the Administrative Agent;
(m) Liens on specific Property to secure Purchase Money Debt used to acquire such Property and set forth on Schedule 1.01(cLiens securing Finance Lease Obligations with respect to specific leased Property, in each case to the extent permitted in Section 7.1(c);
(in) extensions, renewals, or replacements of any Lien referred to in clauses (b) through (k) of this Section, provided that the principal amount of the Debt secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(o) Liens on property the assets or shares Equity Interests of stock any Unrestricted Subsidiary or Joint Venture;
(p) Liens arising after the Closing Date (x) existing on any asset of any Person that becomes a Restricted Subsidiary of the Borrower after the Closing Date at the time such Subsidiary Person becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection withRestricted Subsidiary, or in contemplation of, such other (y) existing on any asset of any Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation such Person is merged with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred of its Restricted Subsidiaries in connection witha transaction otherwise permitted by this Agreement, or in contemplation of, such acquisition; provided, further, that (z) existing on any asset prior to the Liens may not extend to any other property owned acquisition thereof by the Borrower or any Subsidiaryof its Restricted Subsidiaries; provided that (i) any such Lien was not created in the contemplation of any of the foregoing and (ii) any such Lien secures only those obligations which it secures on the date that such Person becomes a Restricted Subsidiary or the date of such merger or the date of such acquisition;
(kq) deposits of cash with the owner or lessor of premises leased and operated by the Borrower or any of its Restricted Subsidiaries to secure the performance of the Borrower’s or such Restricted Subsidiary’s obligations under the terms of the lease for such premises;
(r) Liens securing Indebtedness for Taxes, assessments, or other governmental charges which are not delinquent or which are being contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves in accordance with GAAP have been established and for which such contest operates to suspend the enforcement of any foreclosure or levy on any Property of any Loan Party or any of its Restricted Subsidiaries; (s) pledges, deposits or Liens to secure the performance of bids, trade contracts, governmental contracts, and leases (in each case other than Debt for borrowed money), statutory or regulatory obligations, surety, stay, customs and appeal bonds, performance bonds, and other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be like nature incurred in accordance with Section 6.01;
(1) Liens on specific items the ordinary course of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;business; and
Appears in 2 contracts
Sources: Credit Agreement (LandBridge Co LLC), Credit Agreement (LandBridge Co LLC)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets, income or property of Holdingsprofits, the Borrower or any Subsidiary whether now owned or hereafter acquired, or sign or file or suffer to exist under the UCC of any jurisdiction a financing statement that names the Company or any of its Restricted Subsidiaries as debtor, or assign any accounts or other right to receive income, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxesTaxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or such Restricted Subsidiary, as the case may be, in accordance with GAAP;
(fb) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers’, leases to which the Borrower or any of its Subsidiaries is a party warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its businessbusiness in respect of obligations which do not, individually or in the aggregate, materially impair the use of any of the assets or properties of the Company or any Restricted Subsidiary or which are not overdue by more than 30 days or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or such Restricted Subsidiary, as the case may be, in accordance with GAAP;
(gc) minor survey exceptionspledges or deposits in connection with workmen’s compensation, minor encumbrancesunemployment insurance and other social security legislation;
(d) easements, easements or reservations of, or rights of others for, licenses, rightsright-of-way, sewers, electric lines, telegraph zoning and telephone lines similar restrictions and other similar purposesencumbrances or title defects incurred, or zoning leases or other restrictions as subleases or licenses granted to others, in the use ordinary course of real properties business, which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or Liens incidental to do not interfere with or adversely affect in any material respect the ordinary conduct of the business of the Borrower Company and its Restricted Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(e) Liens in favor of the Collateral Agents for the benefit of the Secured Parties pursuant to the Credit Documents and bankers’ liens arising by operation of law;
(f) Liens on assets of entities or Persons which become Restricted Subsidiaries of the Company after the date hereof; provided that such Liens exist at the time such entities or Persons become Restricted Subsidiaries and are not created in anticipation thereof;
(g) Liens on documents of title and the property covered thereby securing Indebtedness in respect of the Letters of Credit;
(h) Liens existing in existence on the Closing Effective Date and set forth described in Schedule 9.3 and renewals thereof in amounts not to exceed the amounts listed on such Schedule 1.01(c)9.3;
(i) Liens on property assets acquired in connection with a Permitted Acquisition or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary GuarantorPermitted Foreign Acquisition; provided that such Liens (A) exist at the time of the Permitted Acquisition or Permitted Foreign Acquisition in question and are not created or incurred in connection withanticipation thereof, or in contemplation of, such and (B) are not extended to cover other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by assets of the Borrower Company or any Subsidiaryof its Restricted Subsidiaries;
(j) Liens on any leases or licenses of any intellectual property at or intangible assets or entering into any franchise agreement in the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means ordinary course of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiarybusiness;
(k) Liens securing Indebtedness or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, licenses, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a Subsidiary like nature incurred in the ordinary course of business;
(l) Liens securing Indebtedness owing to the Borrower Company or another any Restricted Subsidiary permitted to be incurred in accordance with under Section 6.019.2(b)(ii);
(1m) Liens on specific items fixed or capital assets acquired, constructed or improved by the Company or any Restricted Subsidiary; provided that (i) such security interests secure only Indebtedness permitted by Section 9.2(f), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of inventory such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, (iv) such security interests shall not apply to any other goods property or assets of the Company or any Restricted Subsidiary, and proceeds (v) such security interests shall not interfere with the security and priority of the Liens granted to the Collateral Agents for the benefit of the Secured Parties;
(n) Liens to secure Indebtedness permitted under Section 9.2(h) if (i) no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, (ii) such Liens shall not attach to any Loan Party securing Collateral or interfere with the security and priority of the Liens granted to the Collateral Agents for the benefit of the Secured Parties and (iii) if the aggregate amount of obligations secured by Liens existing in reliance on this clause (n) is either (A) less than $25,000,000 or (B) if $25,000,000 or greater, then the Secured Leverage Ratio of the Company and its Restricted Subsidiaries is less than 2.75 to 1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of the incurrence of such Loan Party’s obligations Indebtedness for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to the incurrence of such as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter);
(o) judgment liens in respect of bankers’ acceptances issued judgments that do not constitute an Event of Default under Section 10.1(h);
(p) Liens arising from precautionary UCC filings or created for similar filings relating to (x) Operating Leases and (y) sub-leasing and/or chartering arrangements relating to aircrafts;
(q) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the account importation of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;
(r) Liens on insurance proceeds securing the payment of financed insurance premiums (provided that such Liens extend only to such insurance proceeds and not to any other property or assets);
(s) Liens on (i) cash deposits made to secure the obligations of the Company and/or its Restricted Subsidiaries under corporate or employee credit card programs up to a maximum aggregate amount of deposits not to exceed $10,000,000 at any time, and (ii) assets of the Company and/or its Restricted Subsidiaries that were purchased using corporate or employee credit cards to secure the obligations of the Company and/or its Restricted Subsidiaries under programs pursuant to which such credit cards were issued, in each case pursuant to corporate or employee credit card programs entered into in the ordinary course of business; and
(t) Liens to secure Indebtedness permitted under Section 9.2(n), provided that to the extent such Indebtedness is secured by Liens on the ABL First Priority Collateral, such Liens shall be on a junior lien basis to the Revolving Credit Facility and shall be subject to customary intercreditor arrangements reasonably satisfactory to the Administrative Agent. No Liens shall be permitted to exist, directly or indirectly (i) on the Collateral (as defined in the Pledge and Security Agreements), other than Liens created under the Pledge and Security Agreements and under clauses (a) or (t) above, or (ii) except as permitted under clauses (a), (f), (i) and (j) above, on material trademarks.
Appears in 2 contracts
Sources: Credit Agreement (KLX Inc.), Loan Agreement (KLX Inc.)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien that secures obligations under of any Indebtedness kind on any asset property owned by the Company or property such Subsidiary; provided that the foregoing shall not apply to nor operate to prevent (each of Holdingsthe following, the Borrower or any Subsidiary now owned or hereafter acquired, except:a “Permitted Lien”):
(a) Liens to secure Indebtedness incurred under for taxes, assessments, governmental charges or levies; provided that payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens arising under statutes or by operation of law, Liens in connection with worker’s compensation, unemployment insurance, social security and other similar laws (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedthe performance of bids, thattenders, trade, government or other similar contracts, obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, or other Liens of like general nature, in any such case incurred in the case ordinary course of Term Loan First business and not in connection with the creation or incurrence of Indebtedness; provided that (i) any such Lien Collateral, secures only amounts not due and payable or the Liens payment of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the business of the collateral agent under Company and its Subsidiaries taken as a whole or the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor value of the Collateral Agent related property for the benefit purposes of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)such business;
(c) pledges mechanics’, workmen’s, materialmen’s, attorney’s, landlords’, carriers’ or deposits other similar Liens arising in the ordinary course of business and not in connection with the creation or incurrence of Indebtedness and in each such case with respect to obligations which are not due or that are bonded or that are being contested in good faith by appropriate proceedings; Table of Contents
(d) Liens of or resulting from any court proceeding, judgment or award, (i) the time for the appeal or petition for rehearing of which shall not have expired, or (ii) in respect of workers’ compensation lawswhich the Company or a Subsidiary shall be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; provided that the Company or such Subsidiary (1) is contesting such proceeding, unemployment insurance laws judgment or similar legislationaward on a timely basis, in good faith and by appropriate proceedings, and (2) has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary, as the case may be;
(e) Liens securing Indebtedness of a Subsidiary to the Company or to another Wholly-owned Subsidiary;
(f) Liens existing as of the date of the Closing and described on Schedule 5.15(b) hereto;
(g) Liens on property of the Company or any of its Subsidiaries created solely for the purpose of securing purchase money indebtedness (including in connection with the acquisition, construction or improvement of property) or Capitalized Lease Obligations and, representing or incurred to finance, refinance or refund the purchase price of property; provided that no such Lien shall extend to or cover other property of the Company or such Subsidiary other than the respective property so acquired, constructed or improved, and the principal amount of indebtedness secured by any such Lien shall at no time exceed the total purchase price (or cost of construction or improvement) of such property;
(h) Liens existing on property of a Person at the time such Person is consolidated with or merged into the Company or a Subsidiary or becomes a Subsidiary, or good faith 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 (i) 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, (ii) 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 which is an improvement to or is acquired for specific use in connection with such acquired property;
(i) customary rights of set off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code in favor of banks or other financial institutions where the Company or any Subsidiary maintains deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dj) Liens imposed by lawconstituting (i) survey restrictions, such as carriers’encumbrances in the nature of zoning restrictions, landlords’condemnations, suppliers’easements, warehousemen’s and mechanics’ Liensencroachments, covenants, rights of distraint way, defects, irregularities and other similar Liens, in each case, for sums not yet overdue for a period rights or restrictions of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained record on the books title or use of such Loan Party in accordance with GAAP;
real property, and (eii) Liens for taxesleases, assessments subleases, licenses or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject sublicenses granted to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued others in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights business and Liens covering property subject to any lease which was not entered into in violation of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning this Agreement securing the interest of the lessor or other restrictions as to Person under such lease, which in any such case does not materially detract from the value of the subject property or materially impair the use of real properties or Liens incidental to the conduct of thereof in the business of the Borrower Company and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole; Table of Contents
(k) any encumbrance or restriction (including, but not limited to, put and call agreements, rights of first refusal, and voting or equity holder agreements) with respect to equity or ownership interests in any joint venture or similar arrangement pursuant to any joint venture or similar agreement in any such case not entered into in connection with the creation or incurrence of Indebtedness;
(l) Liens other than those permitted by any of the foregoing subsections (a) through (k); provided that all Indebtedness secured by any such Liens, in the aggregate with all other Consolidated Priority Indebtedness at such time, does not exceed 15% of Consolidated Total Capitalization, calculated in accordance with Agreement Accounting Principles; and
(m) any extension, renewal or replacement of any Lien permitted by the preceding clauses (e), (f), (g) and (h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
of this Section 10.4; provided that (i) Liens no additional property (other than improvements thereon) shall be encumbered by such Liens, (ii) the unpaid principal amount of Indebtedness secured thereby shall not be increased on property or shares after the date of stock of a Subsidiary such extension, renewal or replacement and (iii) at the time of such extension, renewal or replacement and after giving effect thereto, no Default or Event of Default would exist, including, without limitation, under Sections 10.1, 10.2 and 10.3, with any calculation of compliance therewith to be made as of the end of the immediately preceding fiscal quarter after giving pro forma effect to the extension, renewal or replacement of such Lien. Notwithstanding anything to the contrary contained herein, the Company covenants that it will not, and will not permit any Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created to, create, incur or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend permit to exist any other Lien of any kind on any property owned by the Borrower Company or such Subsidiary to secure any Subsidiary;
(j) Liens on property at Indebtedness of the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that under the Liens may not extend to any Bank Credit Agreement unless the Notes and all other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other respective obligations of the Obligors under this Agreement and of the Subsidiary Guarantors under any Subsidiary Guaranty, as applicable, are secured on a Subsidiary owing pari passu basis by a lien on such property pursuant to documentation, including an intercreditor agreement, in form and substance reasonably satisfactory to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 2 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Gallagher Arthur J & Co)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation does not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by ▇▇▇▇▇ referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 4.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (c) in Section 4.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 10% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Labcorp Holdings Inc.), First Supplemental Indenture (Labcorp Holdings Inc.)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred Liens, if any, securing the obligations of the Company under Section 6.01(b)(xxi)this Agreement and the Notes;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or its Subsidiaries, as the case may be, in accordance conformity with GAAP;
(fc) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers’, leases to which the Borrower or any of its Subsidiaries is a party warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(gf) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or zoning or other restrictions as to materially interfere with the use of real properties or Liens incidental to the ordinary conduct of the business of the Borrower and its Subsidiaries Company or such Subsidiary;
(g) Liens in existence on the Closing Date listed on Schedule V, securing Indebtedness in existence on the Closing Date, provided that no such Lien is spread to cover any additional property or any material improvements to the ownership property listed on Schedule V after the Closing Date and that the amount of their properties, in each case, which were Indebtedness secured thereby is not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholeincreased;
(h) Liens existing on securing Indebtedness of the Closing Date Company and set forth on Schedule 1.01(c)its Subsidiaries not prohibited hereunder incurred to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (iii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the original purchase price of such property;
(i) Liens on the property or shares of stock assets of a corporation which becomes a Subsidiary after the date hereof, provided that (i) such Liens existed at the time such corporation became a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to cover any other property or assets after the time such corporation becomes a Subsidiary Guarantor; provided that such Liens are and (iii) the amount of Indebtedness secured thereby, if any, is not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiaryincreased;
(j) Liens on property at the time Headquarters, Riverview Square, the Borrower or a Subsidiary Guarantor acquired Waterside Garage, the propertyGreen Bay Facility, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary GuarantorClocktower Building and the Waterside Building; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;or
(k) Liens not otherwise permitted under this subsection 7.3 securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect an aggregate amount not exceeding at any time 10% of bankers’ acceptances issued or created for Consolidated Net Tangible Assets as at the account end of such Loan Party to facilitate the purchase, shipment or storage immediately preceding fiscal quarter of such inventory or other goods;the Company.
Appears in 2 contracts
Sources: Credit Agreement (Humana Inc), Credit Agreement (Humana Inc)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly No Loan Party shall create or indirectly, create, incur, assume or suffer to exist be incurred or permit to exist, any Lien that secures obligations under any Indebtedness on any asset its property or property of Holdingsassets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its general creditors, or acquire or agree to acquire any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen, provided payment thereof is not at the time required by Section 6.08; provided further in each case, the obligation secured is not overdue or, if overdue, is bonded or the execution of which is stayed by appropriate judicial action; and provided finally that any such Lien is subject and subordinate to secure Indebtedness incurred under Section 6.01(b)(xxi)the Lien of the Collateral Documents unless otherwise provided by operation of law;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens time for the appeal or petition for rehearing of which shall not have expired, or in respect of which any applicable Loan Party shall at any time in good faith be prosecuting an appeal or proceeding for a review and in respect of which the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement obligation secured by such Lien is bonded or a stay of execution pending such appeal or proceeding for review shall expressly rank junior have been secured; provided that any such Lien is subject and subordinate to the first-priority security interest intended to be created in favor Lien of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Documents;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation lawsconnection with worker’s compensation, unemployment insurance and other like laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtednessany such Lien imposed pursuant to section 401(a)(29) or leases412(n) of the Code or under ERISA), warehousemen’s and attorneys’ liens and statutory landlords’ liens) and Liens to secure the performance of bids, tenders or trade contracts, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rent, in each case like general nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate actions or proceedings and is bonded or other Liens arising out the execution of judgments or awards with respect which is stayed by appropriate judicial action; and provided further that any such Lien is subject and subordinate to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on Lien of the books Collateral Documents unless otherwise provided by operation of such Loan Party in accordance with GAAPlaw;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties properties, which do not in any event materially impair the value of such real property or Liens incidental to the conduct use thereof in the operation of the business of any Loan Party;
(e) Liens existing as of the Borrower Effective Date and its Subsidiaries or reflected in Schedule 5.15;
(f) Liens of the Collateral Documents and Liens expressly permitted pursuant thereto;
(g) Liens securing the obligations of Borrowers under Subordinated Notes and Subordinated Guaranties, but only to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness extent such Liens are subject to valid and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;enforceable Subordination Agreements; and
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(csecuring any Debt or Capital Lease permitted under Section 7.01(c);
; provided that (i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are do not created at any time encumber any property other than the property financed by such Debt or incurred in connection withCapital Lease and (ii) the Debt or Capital Lease secured thereby does not exceed the cost or fair market value, or in contemplation ofwhichever is lower, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other of the property owned by being acquired on the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means date of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;.
Appears in 2 contracts
Sources: Credit Agreement (Camping World Holdings, Inc.), Credit Agreement (Camping World Holdings, Inc.)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien that secures obligations under on or with respect to any Indebtedness on property or asset (including, without limitation, any asset document or property instrument in respect of Holdings, goods or accounts receivable) of the Borrower Company or any Subsidiary such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims that are not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or the payment of which are being contested in good faith is not at the time required by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPSection 9.4;
(fb) any attachment or judgment Lien, 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;
(c) Liens in favor incidental to the conduct of issuers business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums not yet due and payable) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued Liens incurred in the ordinary course of its businessbusiness and not in connection with the borrowing of money;
(gd) minor survey exceptionslicenses, minor encumbrancesleases or subleases granted to others, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposescharges or encumbrances, or zoning or other restrictions as to the use of real properties or Liens in each case incidental to the ownership of property or assets or the ordinary conduct of the business of the Borrower Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and its Subsidiaries the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary;
(f) Liens existing on the ownership of their properties, Execution Date and reflected in each case, which were not Schedule 10.4;
(g) Liens incurred after the Execution Date (including Liens incurred in connection with Indebtedness Capitalized Leases and which do not Off-Balance Sheet Obligations) given to secure the payment of the purchase price incurred in connection with the aggregate materially adversely affect acquisition, construction or improvement of property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Borrower Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such ▇▇▇▇▇ would be permitted by the limitation set forth in Section 10.2 and its Subsidiaries(4) at the time of such incurrence and after giving effect thereto, taken as a wholeno Default or Event of Default shall have occurred and be continuing;
(h) Liens any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Closing Date and Company or a Restricted Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Restricted Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (1) 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, (2) 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 which is an improvement to or is acquired for specific use in connection with such acquired property, (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth on Schedule 1.01(c)in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) Liens on property any interest or shares of stock title of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to lessor under any other property owned operating lease entered into by the Borrower Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens on property at arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created Restricted Subsidiary, as lessee or incurred consignee, in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiaryordinary course of business;
(k) Liens securing Indebtedness or other obligations in favor of a Subsidiary owing to banking institutions arising by operation of law encumbering deposits (including the Borrower or another Subsidiary permitted to be right of set-off) held by such banking institutions incurred in accordance with Section 6.01the ordinary course of business and that are within the general parameters customary in the banking industry;
(1l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(m) possessory rights of customers of the Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens on upon specific items of inventory Inventory and the proceeds thereof securing the obligations of the Company or other goods and proceeds of any Loan Party securing such Loan Party’s obligations Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Loan Party Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory Inventory;
(o) Liens arising in connection with trade letters of credit issued to secure the purchase of Inventory in the ordinary course of business of the Company or any Restricted Subsidiary, provided that such Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other goodsobligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(r) Liens created pursuant to disposals of receivable pursuant to customary supply chain financing arrangements initiated and provided by customers of the Company and its Subsidiaries not prohibited by Section 10.5; and
(s) other Liens not otherwise permitted by paragraphs (a) through (r), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the limitations set forth in Section 10.2 and Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (s) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Mettler Toledo International Inc/), Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the its Restricted Subsidiaries to, directly or indirectly, indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien that secures obligations under on or with respect to any Indebtedness on property or asset (including, without limitation, any asset document or property instrument in respect of Holdings, goods or accounts receivable) of the Borrower Company or any Subsidiary such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens to secure Indebtedness incurred under for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen, provided payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens incidental to the normal conduct of business of the Company or any Restricted Subsidiary or to secure Indebtedness claims for labor, materials or supplies in respect of obligations not overdue or in connection with the ownership of its property (including Liens in connection with worker’s compensation, unemployment insurance and other like laws, warehousemen’s and attorney’s liens and statutory landlords’ liens) which are not incurred under Section 6.01(b)(i); provided, that, in connection with the incurrence of Debt or the borrowing of money and which do not in the case aggregate Materially impair the use of Term Loan First Lien Collateral, such property in the Liens operation of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor business of the Collateral Agent Company and its Restricted Subsidiaries, taken as a whole, or the value of such property for the benefit purpose of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)such business;
(c) pledges Liens created by or deposits in respect of workers’ compensation laws, unemployment insurance laws resulting from any litigation or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or legal proceeding which is currently being contested in good faith by appropriate proceedings or which result from a final, nonappealable judgment which is satisfied, or whose satisfaction is assured by the posting of a bond or other collateral, within sixty (60) days after such judgment becomes final and nonappealable;
(d) Liens arising out of judgments carriers, warehousemen, mechanics and materialmen, and other like Liens, in existence less than sixty (60) days (or awards in the case of any Lien with respect to which the applicable Loan Party underlying claim shall then currently be proceeding with an appeal contested by the Company or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested Restricted Subsidiary in good faith by appropriate proceedings, if adequate reserves with the period of time during which such Lien is being contested) from the date of creation thereof in respect thereto are maintained on of obligations not overdue or deposits to obtain the books release of such Liens;
(e) Liens securing Debt of a Restricted Subsidiary to the applicable Loan Party in accordance with GAAPCompany or to another Restricted Subsidiary;
(f) Liens existing as of the date of Closing and reflected in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessSchedule 10.5;
(g) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the business activities of the Borrower Company and its Restricted Subsidiaries or to the ownership which customarily exist on real properties of their properties, corporations engaged in each case, which were not incurred in connection with Indebtedness similar activities and similarly situated and which do not in any event Materially detract from the aggregate materially adversely affect the business value of the Borrower and its Subsidiaries, taken as a wholesuch real property;
(h) Liens existing leases or subleases granted to any Person by the Company or any Restricted Subsidiary, as lessor or sublessor, on any property owned or leased by the Closing Date and set forth on Schedule 1.01(c)Company or any Restricted Subsidiary, provided that in each case such lease or sublease shall not Materially detract from the value of the property leased or subleased;
(i) Liens incurred after the date of Closing and existing on property or shares of stock of a Subsidiary any business entity at the time of acquisition of such Subsidiary becomes business entity by the Company or a Subsidiary Guarantor; Restricted Subsidiary, so long as such Liens were not incurred, extended or renewed in contemplation of the acquisition of such business entity, provided that (i) the Lien shall attach solely to the property of the business entity so acquired, (ii) at the time of acquisition of such business entity, the aggregate amount remaining unpaid on all Debt secured by Liens on the property of such business entity, whether or not assumed by the Company or a Restricted Subsidiary, shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition of such business entity (as determined in good faith by the Board of Directors of the Company or any Restricted Subsidiary, as the case may be), and (iii) the aggregate principal amount of all Debt secured by such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned shall be permitted by the Borrower or any Subsidiarylimitations set forth in SectionSections 10.2 and 10.3;
(j) Liens incurred after the date of Closing given to secure the payment of the purchase price incurred in connection with the acquisition or construction of property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof, or Liens incurred within one hundred eighty (180) days of such acquisition or the Borrower completion of such construction, provided that (i) the Lien shall attach solely to the property acquired, purchased or constructed, (ii) at the time of acquisition or construction of such property, the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or not assumed by the Company or a Subsidiary Guarantor acquired Restricted Subsidiary, shall not exceed an amount equal to the property, including any lesser of the total purchase price or fair market value at the time of acquisition or construction of such property (as determined in good faith by means the Board of a merger or consolidation with or into Directors of the Borrower Company or any Subsidiary GuarantorRestricted Subsidiary, as the case may be), and (iii) the aggregate principal amount of all Debt secured by such Liens shall be permitted by the limitations set forth in SectionSections 10.2 and 10.3;
(k) any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (a) through (j) inclusive, of this Section 10.510.9, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt secured thereby shall not be increased on or after the date of any extension, renewal or replacement, (iii) the weighted average life to maturity of the Debt secured by such Liens shall not be reduced, and (iv) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(l) Liens on the Collateral in favor of the Collateral Agent and the Secured Creditors securing the Obligations in accordance with the terms of the Intercreditor Agreement; and
(m) Liens securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Liens are not created or incurred Priority Debt shall be permitted by the applicable limitations set forth in connection withSections 10.2, or in contemplation of10.3 and 10.4, such acquisition; and provided, further, that notwithstanding the Liens may foregoing, the Company shall not, and shall not extend to permit any other property owned by the Borrower of its Restricted Subsidiaries to, secure any Debt outstanding under or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing pursuant to the Borrower or another Subsidiary permitted Material Credit Facility pursuant to this Section 10.510.9(lm) unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be incurred secured equally and ratably with such Debt pursuant to documentation reasonably acceptable to the Required Holders in accordance with Section 6.01;
(1) Liens on specific items substance and in form, including, without limitation, an intercreditor agreement and customary opinions of inventory or other goods and proceeds of counsel to the Company and/or any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for Subsidiary, as the account of such Loan Party case may be, from counsel that is reasonably acceptable to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 2 contracts
Sources: Note Purchase Agreement (Marcus Corp), Note Purchase Agreement (Marcus Corp)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien that secures obligations under on or with respect to any Indebtedness on property or asset (including, without limitation, any asset document or property instrument in respect of Holdings, goods or accounts receivable) of the Borrower Company or any Subsidiary such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims that are not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or the payment of which are being contested in good faith is not at the time required by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPSection 9.4;
(fb) any attachment or judgment Lien, 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;
(c) Liens in favor incidental to the conduct of issuers business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums not yet due and payable) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued Liens incurred in the ordinary course of its businessbusiness and not in connection with the borrowing of money;
(gd) minor survey exceptionslicenses, minor encumbrancesleases or subleases granted to others, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposescharges or encumbrances, or zoning or other restrictions as to the use of real properties or Liens in each case incidental to the ownership of property or assets or the ordinary conduct of the business of the Borrower Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and its Subsidiaries the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary;
(f) Liens existing on the ownership of their properties, Execution Date and reflected in each case, which were not Schedule 10.4;
(g) Liens incurred after the Execution Date (including Liens incurred in connection with Indebtedness Capitalized Leases and which do not Off-Balance Sheet Obligations) given to secure the payment of the purchase price incurred in connection with the aggregate materially adversely affect acquisition, construction or improvement of property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Borrower Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and its Subsidiaries(4) at the time of such incurrence and after giving effect thereto, taken as a wholeno Default or Event of Default shall have occurred and be continuing;
(h) Liens any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Closing Date and Company or a Restricted Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Restricted Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (1) 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, (2) 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 which is an improvement to or is acquired for specific use in connection with such acquired property, (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth on Schedule 1.01(c)in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) Liens on property any interest or shares of stock title of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to lessor under any other property owned operating lease entered into by the Borrower Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens on property at arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created Restricted Subsidiary, as lessee or incurred consignee, in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiaryordinary course of business;
(k) Liens securing Indebtedness or other obligations in favor of a Subsidiary owing to banking institutions arising by operation of law encumbering deposits (including the Borrower or another Subsidiary permitted to be right of set-off) held by such banking institutions incurred in accordance with Section 6.01the ordinary course of business and that are within the general parameters customary in the banking industry;
(1l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(m) possessory rights of customers of the Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens on upon specific items of inventory Inventory and the proceeds thereof securing the obligations of the Company or other goods and proceeds of any Loan Party securing such Loan Party’s obligations Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Loan Party Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory Inventory;
(o) Liens arising in connection with trade letters of credit issued to secure the purchase of Inventory in the ordinary course of business of the Company or any Restricted Subsidiary, provided that such Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other goodsobligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(r) Liens created pursuant to disposals of receivable pursuant to customary supply chain financing arrangements initiated and provided by customers of the Company and its Subsidiaries not prohibited by Section 10.5; and
(s) other Liens not otherwise permitted by paragraphs (a) through (r), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the limitations set forth in Section 10.2 and Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (s) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Mettler Toledo International Inc/), Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien that secures obligations under on or with respect to any Indebtedness on property or asset (including, without limitation, any asset document or property instrument in respect of Holdings, goods or accounts receivable) of the Borrower Company or any Subsidiary such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims that are not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or the payment of which are being contested in good faith is not at the time required by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPSection 9.4;
(fb) any attachment or judgment Lien, 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;
(c) Liens in favor incidental to the conduct of issuers business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums not yet due and payable) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued Liens incurred in the ordinary course of its businessbusiness and not in connection with the borrowing of money;
(gd) minor survey exceptionslicenses, minor encumbrancesleases or subleases granted to others, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposescharges or encumbrances, or zoning or other restrictions as to the use of real properties or Liens in each case incidental to the ownership of property or assets or the ordinary conduct of the business of the Borrower Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and its Subsidiaries the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary;
(f) Liens existing on the ownership date of their properties, this Agreement and reflected in each case, which were not Schedule 10.4;
(g) Liens incurred after the date of this Agreement (including Liens incurred in connection with Indebtedness Capitalized Leases and which do not Off-Balance Sheet Obligations) given to secure the payment of the purchase price incurred in connection with the aggregate materially adversely affect acquisition, construction or improvement of property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Borrower Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such ▇▇▇▇▇ would be permitted by the limitation set forth in Section 10.2 and its Subsidiaries(4) at the time of such incurrence and after giving effect thereto, taken as a wholeno Default or Event of Default shall have occurred and be continuing;
(h) Liens any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Closing Date and Company or a Restricted Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Restricted Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (1) 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, (2) 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 which is an improvement to or is acquired for specific use in connection with such acquired property, (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth on Schedule 1.01(c)in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) Liens on property any interest or shares of stock title of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to lessor under any other property owned operating lease entered into by the Borrower Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens on property at arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created Restricted Subsidiary, as lessee or incurred consignee, in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiaryordinary course of business;
(k) Liens securing Indebtedness or other obligations in favor of a Subsidiary owing to banking institutions arising by operation of law encumbering deposits (including the Borrower or another Subsidiary permitted to be right of set-off) held by such banking institutions incurred in accordance with Section 6.01the ordinary course of business and that are within the general parameters customary in the banking industry;
(1l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(m) possessory rights of customers of the Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens on upon specific items of inventory Inventory and the proceeds thereof securing the obligations of the Company or other goods and proceeds of any Loan Party securing such Loan Party’s obligations Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Loan Party Restricted Subsidiary to facilitate the purchase, shipment or storage of such inventory Inventory;
(o) Liens arising in connection with trade letters of credit issued to secure the purchase of Inventory in the ordinary course of business of the Company or any Restricted Subsidiary, provided that such Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other goodsobligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(r) Liens created pursuant to disposals of receivable pursuant to customary supply chain financing arrangements initiated and provided by customers of the Company and its Subsidiaries not prohibited by Section 10.5; and
(s) other Liens not otherwise permitted by paragraphs (a) through (r), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the limitations set forth in Section 10.2 and Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (s) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Mettler Toledo International Inc/), Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. Holdings and the Borrower No Restricted Person will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset of its properties or property of Holdings, the Borrower or any Subsidiary assets now owned or hereafter acquired, except:except the following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedimposed by any Governmental Authority for taxes, thatassessments or charges not yet due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the books of any Restricted Person in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)accordance with GAAP;
(c) pledges or deposits in respect of workers’ compensation lawscash or securities under worker’s compensation, unemployment insurance laws or similar other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including, without limitation, Liens on property of any Restricted Person in the possession of storage facilities, pipelines or barges) arising in the ordinary course of business for amounts which are not more than 60 days past due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(e) deposits of cash or securities to secure the performance of bids, tenders, trade contracts (other than for the payment of Indebtedness) or borrowed money), leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or and appeal bonds, or deposits as security for contested taxes or import duties or for the payment performance bonds and other obligations of rent, in each case a like nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties property or Liens incidental to minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of any Restricted Person;
(g) rights reserved to or vested in any Governmental Authority by the Borrower and its Subsidiaries terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholecondemn or acquire by eminent domain or similar process;
(h) Liens existing on rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the Closing Date properties of any Restricted Person or the use thereof or the rights and set forth on Schedule 1.01(c)interests of any Restricted Person therein, in any manner under any and all Laws;
(i) rights reserved to the grantors of any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith;
(j) inchoate Liens in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.01;
(k) statutory Liens in respect of payables;
(l) any Lien existing on any property prior to the acquisition thereof by the Borrower or shares any Subsidiary or existing on any property of stock of any Person that becomes a Subsidiary at after the date hereof prior to the time such Subsidiary Person becomes a Subsidiary GuarantorSubsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property of the Borrower or any Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be; and (iv) such Liens together with all Liens permitted under Section 7.02(m) do not secure Indebtedness in excess of the amount permitted by Section 7.02(m);
(m) Liens securing Indebtedness permitted by Section 7.01(f), (g) or (h); provided that such Liens are do not created or incurred secure Indebtedness which together with (but without duplication) all Indebtedness secured by Liens permitted under Section 7.02(l) in connection with, or in contemplation of, such other Person becoming such excess of a Subsidiary Guarantor; provided, further, that such Liens may not extend to principal amount at any other property owned by the Borrower or any Subsidiaryone time of $35,000,000;
(jn) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiarycash margin collateral securing Hedging Contracts permitted under Section 7.10;
(ko) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued operating leases covering only the property subject thereto; and
(p) Liens pursuant to the Loan Documents; Notwithstanding any of the foregoing to the contrary, no Liens of the kind set forth in clauses (a) through and including (o) above shall be permitted on the Equity Interests of ETP, ETP GP or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;ETP LLC.
Appears in 2 contracts
Sources: Credit Agreement (Energy Transfer Equity, L.P.), Credit Agreement (Energy Transfer Equity, L.P.)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower will Company shall not, and the Borrower will shall not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by ▇▇▇▇▇ referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 4.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (3) in Section 4.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 5% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Laboratory Corp of America Holdings), First Supplemental Indenture (Laboratory Corp of America Holdings)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other and governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Group Member in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained in the books of the applicable Group Member, in conformity with GAAP;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation;
(d) deposits by or on behalf of any Group Member and subordinated security interests on assets related to a particular performance bond granted to the surety providing such performance bond, in each case, to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business, so long as the aggregate amount of deposits at any one time outstanding securing appeal bonds does not exceed $5,000,000;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and any Liens permitted or excepted in the Mortgages that, in the aggregate, do not in any case materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of the Group Members;
(f) Liens in favor existence on the Closing Date listed on Schedule 7.3(f); provided that no such Lien is spread to cover any additional Property after the Closing Date and that the amount secured thereby is not increased;
(g) Liens securing Indebtedness of issuers any Group Member incurred pursuant to Section 7.2(c) to finance the acquisition of performance fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased and surety bonds (iv) the amount of Indebtedness initially secured thereby is not more than 100% of the purchase price of such fixed or bid bonds capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by any Group Member in the ordinary course of its business and covering only the assets so leased;
(j) advance deposits (including extension payments) arising after the Closing Date in connection with respect to other regulatory requirements any Investment permitted by Section 7.8(g);
(k) Liens on the property or pledges assets of a Person which becomes a Subsidiary of a Borrower after the Closing Date, or deposits securing payment of insurance premiums, leases to which the is acquired by a Borrower or any of its Subsidiaries is after the Closing Date, securing Indebtedness permitted by Section 7.2(f); provided that (i) such Liens existed at the time such Person became a party or other similar obligations or letters Subsidiary of credit issued in the ordinary course of its business;
a Borrower, (gii) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or such Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred granted in connection with Indebtedness and which do not or in the aggregate materially adversely affect the business contemplation of the Borrower applicable Permitted Acquisition and its Subsidiaries, taken (iii) the amount of Indebtedness secured thereby is not increased (except as a whole;
expressly provided in Section 7.2(f)) and such Liens are not expanded to cover additional Property (h) Liens existing on the Closing Date and set forth on Schedule 1.01(cother than proceeds thereof);
(il) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations unearned premiums in respect of bankers’ acceptances issued or created for insurance policies securing insurance premium financing permitted under Section 7.2(k); and
(m) Liens not otherwise permitted by this Section 7.3 so long as neither (i) the account aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market value (determined, in the case of each such Loan Party to facilitate Lien, as of the purchase, shipment or storage date such Lien is incurred) of such inventory or other goods;the assets subject thereto exceeds $5,000,000 at any one time.
Appears in 2 contracts
Sources: Credit Agreement (Waste Services, Inc.), Credit Agreement (Waste Services, Inc.)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedin existence on the date hereof and listed in Part B of Schedule II hereto, that, in the case of Term Loan First Lien Collateral, the and Liens on cash and cash equivalents securing obligations of the collateral agent under Company in respect of Interest Rate Protection Agreements, so long as the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor aggregate fair market value of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)cash and cash equivalents subject to such Liens does not exceed $3,000,000;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Restricted Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 9(j) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds (including, without limitation, performance bonds required pursuant to the terms of any Franchise) and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not interfere with the ordinary conduct of the business of the Borrower and Company or any of its Restricted Subsidiaries with respect to any CATV System or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not CATV Systems that in the aggregate materially adversely affect the business provide service to more than 5% of Subscribers of the Borrower Company and its Subsidiaries, taken Restricted Subsidiaries (determined as a wholeat any date);
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Restricted Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(cwas not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided that (i) no such Lien shall extend to or cover any Property of the Company or such Restricted Subsidiary other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the fair market value (as determined in good faith by a Senior Officer) of such Property at the time it was acquired (by purchase, construction or otherwise);; and
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary Investments permitted to be incurred in accordance with under Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;8.08(k).
Appears in 2 contracts
Sources: Credit Agreement (Frontiervision Holdings Capital Corp), Credit Agreement (Frontiervision Capital Corp)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the its Restricted Subsidiaries to, directly or indirectly, indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien that secures obligations under on or with respect to any Indebtedness on property or asset (including, without limitation, any asset document or property instrument in respect of Holdings, goods or accounts receivable) of the Borrower Company or any Subsidiary such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens to secure Indebtedness incurred under for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen, provided payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens incidental to the normal conduct of business of the Company or any Restricted Subsidiary or to secure Indebtedness claims for labor, materials or supplies in respect of obligations not overdue or in connection with the ownership of its property (including Liens in connection with worker’s compensation, unemployment insurance and other like laws, warehousemen’s and attorney’s liens and statutory landlords’ liens) which are not incurred under Section 6.01(b)(i); provided, that, in connection with the incurrence of Debt or the borrowing of money and which do not in the case aggregate Materially impair the use of Term Loan First Lien Collateral, such property in the Liens operation of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor business of the Collateral Agent Company and its Restricted Subsidiaries, taken as a whole, or the value of such property for the benefit purpose of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)such business;
(c) pledges Liens created by or deposits in respect of workers’ compensation laws, unemployment insurance laws resulting from any litigation or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or legal proceeding which is currently being contested in good faith by appropriate proceedings or which result from a final, nonappealable judgment which is satisfied, or whose satisfaction is assured by the posting of a bond or other collateral, within sixty (60) days after such judgment becomes final and nonappealable;
(d) Liens arising out of judgments carriers, warehousemen, mechanics and materialmen, and other like Liens, in existence less than sixty (60) days (or awards in the case of any Lien with respect to which the applicable Loan Party underlying claim shall then currently be proceeding with an appeal contested by the Company or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested Restricted Subsidiary in good faith by appropriate proceedings, if adequate reserves with the period of time during which such Lien is being contested) from the date of creation thereof in respect thereto are maintained on of obligations not overdue or deposits to obtain the books release of such Liens;
(e) Liens securing Debt of a Restricted Subsidiary to the applicable Loan Party in accordance with GAAPCompany or to another Restricted Subsidiary;
(f) Liens existing as of the date of Closing and reflected in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessSchedule 10.5;
(g) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the business activities of the Borrower Company and its Restricted Subsidiaries or to the ownership which customarily exist on real properties of their properties, corporations engaged in each case, which were not incurred in connection with Indebtedness similar activities and similarly situated and which do not in any event Materially detract from the aggregate materially adversely affect the business value of the Borrower and its Subsidiaries, taken as a wholesuch real property;
(h) Liens existing leases or subleases granted to any Person by the Company or any Restricted Subsidiary, as lessor or sublessor, on any property owned or leased by the Closing Date and set forth on Schedule 1.01(c)Company or any Restricted Subsidiary, provided that in each case such lease or sublease shall not Materially detract from the value of the property leased or subleased;
(i) Liens incurred after the date of Closing and existing on property or shares of stock of a Subsidiary any business entity at the time of acquisition of such Subsidiary becomes business entity by the Company or a Subsidiary Guarantor; Restricted Subsidiary, so long as such Liens were not incurred, extended or renewed in contemplation of the acquisition of such business entity, provided that (i) the Lien shall attach solely to the property of the business entity so acquired, (ii) at the time of acquisition of such business entity, the aggregate amount remaining unpaid on all Debt secured by Liens on the property of such business entity, whether or not assumed by the Company or a Restricted Subsidiary, shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition of such business entity (as determined in good faith by the Board of Directors of the Company or any Restricted Subsidiary, as the case may be), and (iii) the aggregate principal amount of all Debt secured by such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned shall be permitted by the Borrower or any Subsidiarylimitations set forth in Section 10.3;
(j) Liens incurred after the date of Closing given to secure the payment of the purchase price incurred in connection with the acquisition or construction of property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof, or Liens incurred within one hundred eighty (180) days of such acquisition or the Borrower completion of such construction, provided that (i) the Lien shall attach solely to the property acquired, purchased or constructed, (ii) at the time of acquisition or construction of such property, the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or not assumed by the Company or a Subsidiary Guarantor acquired Restricted Subsidiary, shall not exceed an amount equal to the property, including any lesser of the total purchase price or fair market value at the time of acquisition or construction of such property (as determined in good faith by means the Board of a merger or consolidation with or into Directors of the Borrower Company or any Subsidiary GuarantorRestricted Subsidiary, as the case may be), and (iii) the aggregate principal amount of all Debt secured by such Liens shall be permitted by the limitations set forth in Section 10.3;
(k) any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (a) through (j) inclusive, of this Section 10.5, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt secured thereby shall not be increased on or after the date of any extension, renewal or replacement, (iii) the weighted average life to maturity of the Debt secured by such Liens shall not be reduced, and (iv) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(l) Liens securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Liens are not created or incurred Priority Debt shall be permitted by the applicable limitations set forth in connection withSections 10.3 and 10.4, or in contemplation of, such acquisition; and provided, further, that notwithstanding the Liens may foregoing, the Company shall not, and shall not extend to permit any other property owned by the Borrower of its Restricted Subsidiaries to, secure any Debt outstanding under or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing pursuant to the Borrower or another Subsidiary permitted Material Credit Facility pursuant to this Section 10.5(l) unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be incurred secured equally and ratably with such Debt pursuant to documentation reasonably acceptable to the Required Holders in accordance with Section 6.01;
(1) Liens on specific items substance and in form, including, without limitation, an intercreditor agreement and customary opinions of inventory or other goods and proceeds of counsel to the Company and/or any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for Subsidiary, as the account of such Loan Party case may be, from counsel that is reasonably acceptable to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 2 contracts
Sources: Note Purchase Agreement (Marcus Corp), Note Purchase Agreement (Marcus Corp)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under 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 time required by Section 6.01(b)(xxi)9.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation lawsconnection with worker's compensation, unemployment insurance laws and other like laws, warehousemen's and attorneys' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rentlike general nature, in each any such case incurred in the ordinary course of business;
(d) Liens imposed by lawbusiness and not in connection with the borrowing of money, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, PROVIDED in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, rights-for rights- of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company 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 or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower Company and its Subsidiaries;
(e) Liens securing Indebtedness of a Subsidiary to the Company or to another Substantially-Owned Subsidiary;
(f) Liens of the Collateral Documents, taken and other Liens given to the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the terms and provisions and upon the conditions set forth in the Security Documents or the Bank Credit Agreement;
(g) Liens existing as a wholeof the date of the Closing and described in Schedule 5.15;
(h) Liens existing constituting stock pledge agreements granting a security interest on capital stock of Subsidiaries of the Closing Date Company securing Subordinated Indebtedness of the Company owing to the Person from whom the Company has acquired such capital stock, PROVIDED that in each case the Company has entered into a stock pledge agreement in respect of the same such capital stock with the Collateral Agent pledging and granting to the Collateral Agent a second priority Lien and security interest in such capital stock pursuant to the terms and provisions and upon the conditions set forth on Schedule 1.01(c)in the Security Documents and the Bank Credit Agreement;
(i) Liens on created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition or purchase of real or personal property or shares the cost of stock construction or improvements to real or personal property, in any such case, useful and intended to be used in carrying on the business of the Company or a Subsidiary Subsidiary, PROVIDED that (i) the Lien shall attach solely to the real or personal property acquired, purchased, constructed or improved, (ii) such Lien shall have been created or incurred within 120 days after the date of acquisition or purchase or the date of completion of construction or improvement of such real or personal property, as the case may be, (iii) at the time of the imposition of the Lien, the aggregate amount remaining unpaid on all Funded Debt secured by Liens on such Subsidiary becomes real or personal property, as the case may be (whether or not assumed by the Company or a Subsidiary Guarantor; provided that such Liens are Subsidiary) shall not created exceed an amount equal to the lesser of the total acquisition or incurred in connection withpurchase price or cost of construction or improvement, as the case may be, or fair market value of such real or personal property (as determined in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned good faith by the Borrower or any SubsidiaryBoard of Directors of the Company); and (iv) all such Funded Debt shall have been incurred within the applicable limitations provided in Section 10.4(a)(v);
(j) Liens affixed on real or personal property existing (i) at the time of acquisition thereof, whether or not the Borrower Funded Debt secured thereby is assumed by the Company or a Subsidiary, so long as such Lien or Liens were not incurred, extended or renewed in contemplation of such acquisition or purchase, or (ii) on the property of a Person at the time such corporation is merged into or consolidated with the Company or a Subsidiary Guarantor acquired or at the property, including any acquisition by means time of a merger sale, lease or consolidation with other disposition of the properties of a corporation as an entirety to the Company or into a Subsidiary; PROVIDED that (A) the Borrower or any Subsidiary Guarantor; provided that amount of Funded Debt secured by such Liens are shall not created exceed an amount equal to the lesser of the acquisition or incurred purchase price or fair market value of such real or personal property (as determined in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned good faith by the Borrower or any SubsidiaryBoard of Directors of the Company) and (B) all such Funded Debt shall have been incurred within the applicable limitations provided in Section 10.4(a)(v);
(k) Liens securing Indebtedness created or other obligations incurred after the date of a the Closing given to secure Funded Debt of the Company or any Subsidiary owing in addition to the Borrower or another Subsidiary Liens permitted to be by the preceding clauses (a) through (j) hereof, PROVIDED that all Indebtedness secured by such Liens shall have been incurred within the limitations provided in accordance with Section 6.01;Sections 10.4(a)(v)(A) and (B); and
(1l) Liens on specific items of inventory any extension, renewal or other goods and proceeds refunding of any Loan Party securing such Loan Party’s obligations Lien permitted by the preceding clauses (h) through (k) of this Section 10.5 in respect of bankers’ acceptances issued the same property theretofore subject to such Lien in connection with the extension, renewal or created for refunding of the account Indebtedness secured thereby; PROVIDED that (i) such extension, renewal or refunding of Indebtedness shall be without increase in the principal amount remaining unpaid as of the date of such Loan Party extension, renewal or refunding, (ii) such Lien shall attach solely to facilitate the purchasesame such property, shipment or storage and (iii) the principal amount remaining unpaid as of the date of such inventory extension, renewal or other goods;refunding of Indebtedness is less than or equal to the fair market value of the property (determined in good faith by the Board or Directors of the Company) to which such Lien is attached.
Appears in 2 contracts
Sources: First Amendment and Consent (United Asset Management Corp), Note Purchase Agreement (United Asset Management Corp)
Limitation on Liens. Holdings and the Each Borrower will shall not, and the Borrower will shall not permit any of the its Subsidiaries that are Guarantors to, directly or indirectlyincur, create, incurassume, assume or suffer permit to exist any Lien that secures obligations under upon any Indebtedness on any asset of its Property, assets, or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)existing on the date hereof and disclosed on Schedule 7.2;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Secured Parties or Administrative Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Parties;
(c) pledges or deposits in respect encumbrances consisting of workers’ compensation lawsminor easements, unemployment insurance laws or similar legislationzoning restrictions, or good faith deposits to secure bids, tenders, contracts other restrictions on the use of real Property that do not (other than for the payment of Indebtedness) individually or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course aggregate) materially affect the value of businessthe assets encumbered thereby or materially impair the ability of any Borrower or its Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by existing or proposed structures or land use;
(d) Liens imposed by lawfor Taxes, such as carriers’assessments, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims which are not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment delinquent or which are being contested in good faith by appropriate proceedings, if proceedings diligently pursued and for which adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPGAAP have been established and for which such contest operates to suspend the enforcement of any foreclosure or levy on any Property of any Loan Party or any of its Subsidiary;
(e) Liens of mechanics, materialmen, warehousemen, carriers, or other similar statutory Liens securing obligations incurred in the ordinary course of business that are not yet due or which are being contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves in accordance with GAAP have been established and for which such contest operates to suspend the enforcement of any foreclosure or levy on any Property of any Loan Party or any of its Subsidiary; and
(f) Liens in favor resulting from good faith deposits to secure payments of issuers workmen’s compensation or other social security programs (other than Liens imposed by ERISA) or to secure the performance of performance tenders, statutory obligations, surety and surety bonds or bid bonds or with respect to appeal bonds, bids, contracts (other regulatory requirements or pledges or deposits securing than for payment of insurance premiumsDebt), or leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued made in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are the foregoing covenant shall not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend apply to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means Property consisting of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Margin Stock.
Appears in 2 contracts
Sources: Credit Agreement (Maxwell W Keith III), Credit Agreement (Via Renewables, Inc.)
Limitation on Liens. Holdings and the Borrower Neither Obligor will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)equally and ratably securing the Securities of each series;
(b) Liens to secure any Lien that secures Additional Senior Indebtedness incurred under Section 6.01(b)(i); provided, that, in equally and ratably with the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Securities;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any Governmental Authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Partnership or the Company, as the case may be, in accordance with GAAPRAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's, lessor's other than the lessor in a sale-leaseback transaction, or other like Liens arising in the ordinary course of business or are incident to the construction or improvement of any Property that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments as to which all rights of appeal have not terminated and are bonded or pledged or enforcement of which will not have a Material Adverse Effect on the Company or the Partnership but only to the extent, for an amount and for a period not resulting in an Event of Default under Section 4.1(k) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines actions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower Partnership or the Company;
(g) Liens upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Partnership, each of which Liens either (i) existed on such Property before the time of its acquisition and its Subsidiaries was not created in anticipation thereof or (ii) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction, repair or improvement) of such Property; provided that for clause (ii) above, (A) no such Lien shall extend to or cover any Property of the Partnership other than the Property so acquired and improvements thereon, (B) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the purchase price or cost or fair market value (as determined in good faith by a Senior Officer of the Partnership) of such Property at the time it was acquired (by purchase construction or otherwise), (C) the Indebtedness secured by the Lien may not be incurred more than one year after the acquisition, completion of construction, repair, improvement, or commencement of full operation of the Property subject to the ownership Lien, and (D) the principal amount of their properties, in each case, which were all such Indebtedness secured by such Liens shall not incurred in connection with Indebtedness and which do not exceed 5% of the Total Capitalization of the Partnership in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholeat any one time outstanding;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c)any Lien securing a Debt Service Letter of Credit Obligation;
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided any Lien that such Liens are not created or incurred in connection withextends, or renews or replaces in contemplation of, such other Person becoming such whole or in part a Subsidiary Guarantor; provided, further, that such Liens may not extend Lien referred to any other property owned by the Borrower or any Subsidiaryherein;
(j) additional Liens on property at upon real and/or personal Property created after the time the Borrower or a Subsidiary Guarantor acquired the propertydate hereof (including Indebtedness for capitalized lease obligations), including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such the aggregate principal amounts of the Indebtedness secured thereby and incurred on and after the date hereof, excluding the principal amount of Indebtedness secured by Liens are provided by clauses (a) - (h) above, shall not created or incurred exceed 3% of total capitalization of the Partnership in connection with, or in contemplation of, such acquisitionthe aggregate at any one time outstanding; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing any Lien permitted by the foregoing that is created pursuant to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Security Agreements.
Appears in 2 contracts
Sources: Trust Indenture (Midamerican Energy Holdings Co /New/), Trust Indenture (Williams Companies Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume affirm or suffer to exist any Lien of any kind that secures obligations Obligations under any Indebtedness on upon any asset of its property or property of Holdingsassets (including any intercompany notes), the Borrower or any Subsidiary now owned or hereafter acquiredacquired after the Issue Date, except:or any income or profits therefrom, excluding, however, from the operation of the foregoing any of the following (collectively, the “Permitted Liens”):
(a) any Lien existing as of the Issue Date (other than Liens to secure Indebtedness incurred permitted under Section 6.01(b)(xxi4.05(c));
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedany Lien arising by reason of (1) any judgment, thatdecree or order of any court not constituting an Event of Default, in the case of Term Loan First so long as such Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the benefit review of such judgment, decree or order shall not have been finally terminated or the Term Loan Secured Parties period within which such proceedings may be initiated shall not have expired; (as defined in the Intercreditor Agreement);
(c2) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment delinquent or which are being contested in good faith by appropriate proceedings, if and for which adequate reserves with respect thereto are maintained on the books of the applicable Loan Party have been established in accordance with GAAP;
; (f3) Liens security for payment of workers’ compensation or other insurance; (4) good faith deposits in favor connection with tenders, leases, contracts (other than contracts for the payment of issuers money); (5) zoning restrictions, easements, licenses, reservations, provisions, covenants, conditions, waivers, restrictions on the use of performance property or minor irregularities of title (and surety bonds or bid bonds or with respect to leasehold interests, mortgages, obligations, liens and other regulatory requirements encumbrances incurred, created, assumed or pledges permitted to exist and arising by, through or deposits securing payment under a landlord or owner of insurance premiumsthe leased property, leases with or without consent of the lessee), none of which materially impairs the use of any parcel of property material to which the Borrower operation of the business of the Company or any Subsidiary Guarantor or the value of its Subsidiaries is a party such property for the purpose of such business; (6) deposits to secure public or other similar obligations statutory obligations, or letters in lieu of credit issued in the ordinary course of its business;
surety or appeal bonds; (g7) minor survey exceptions, minor title defects, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-rights of way, sewers, electric lines, telegraph and or telephone lines and other similar purposes, purposes or zoning or other restrictions as to the use of real properties or Liens incidental to property not interfering with the ordinary conduct of the business of the Borrower and its Subsidiaries Company or to any of the ownership Subsidiary Guarantors; or (8) operation of their propertieslaw in favor of mechanics, in each casematerialmen, which were not laborers, employees or suppliers, incurred in connection with Indebtedness and the ordinary course of business for sums which do are not yet delinquent or are being contested in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholegood faith by negotiations or by appropriate proceedings;
(c) any first-priority Lien now or hereafter existing on property of the Company or any Restricted Subsidiary securing Indebtedness (other than Indebtedness incurred pursuant to Section 4.03(b)(13)) in an aggregate principal amount not to exceed the greater of (A) $250.0 million and (B) the sum of (x) 65% of the book value of the inventory of the Company and its Restricted Subsidiaries and (y) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries; provided that (x) the incurrence of such Indebtedness is (or was at the time of incurrence) permitted under Section 4.03 and (y) the Notes and the Subsidiary Guarantees shall be secured by Second-Priority Liens on such property;
(d) any Lien now or hereinafter existing on property of the Company or any Restricted Subsidiary securing Hedging Obligations permitted under the provisions of Section 4.03 relating to Indebtedness referred to in clause (c) above or clause (e), (g), or (h) Liens existing on below (provided that such Lien shall have the Closing Date and set forth on Schedule 1.01(csame or a more junior priority than the Lien securing the Indebtedness referred to in any such clause);
(ie) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are any Lien securing Acquired Indebtedness created prior to (and not created or incurred in connection with, or in contemplation of, ) the incurrence of such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned Indebtedness by the Borrower Company or any Restricted Subsidiary, in each case the incurrence of which Indebtedness is (or was at the time of incurrence) permitted under the provisions of Section 4.03; provided that any such Lien only extends to the assets that were subject to such Lien securing such Acquired Indebtedness prior to the related transaction by the Company or its Restricted Subsidiaries and the proceeds thereof and additions and accessions thereto;
(f) Liens securing the Notes and Subsidiary Guarantees and any Obligations under this Indenture, the Intercreditor Agreement or the Security Documents;
(g) Liens other than first-priority Liens on property of the Company or any Restricted Subsidiary securing Indebtedness that is (or was at the time of incurrence) permitted to be incurred under Section 4.03 which Indebtedness, when combined with the outstanding principal amount of the Notes, does not exceed an aggregate principal amount of $250.0 million, provided that the Notes and the Subsidiary Guarantees shall be secured on a pari passu basis by Liens on such property;
(h) Liens on property of the Company or any Restricted Subsidiary securing Indebtedness that is (or was at the time of incurrence) permitted to be incurred under Section 4.03; provided that (a) the Notes and the Guarantees shall be secured by such property senior in priority to such Indebtedness and (b) the holder of such Lien is subject to an intercreditor agreement with the Collateral Agent, as senior lien holder, consistent with the terms of the Intercreditor Agreement;
(i) Liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned the Company or any Restricted Subsidiary located on the premises of the Company or such Restricted Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of the Company or such Restricted Subsidiary and the precautionary UCC financing statement filings in respect thereof;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the propertyjudgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default; provided, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that (i) such Liens are not created being contested in good faith and by appropriate proceedings diligently pursued, and (ii) adequate reserves or incurred in connection withother appropriate provision, or in contemplation ofif any, such acquisition; provided, further, that the Liens may not extend to any other property owned as are required by the Borrower or any SubsidiaryGAAP have been made therefor;
(k) leases or subleases of Real Property granted by the Company or any Restricted Subsidiary to any Person so long as any such leases or subleases are subordinate in all respects to the security interests and liens granted to the Collateral Agent and do not interfere in any material respect with the ordinary conduct of the business of the Company or such Restricted Subsidiary or materially impair the value or marketability of the Real Property subject thereto in the judgment of management of the Company;
(l) licenses of intellectual property otherwise permitted under this Indenture;
(m) statutory or common law Liens or rights of setoff of depository banks with respect to funds of the Company or any Restricted Subsidiary at such banks to secure fees and charges in connection with returned items or the standard fees and charges of such banks in connection with the deposit accounts maintained by the Company or such Restricted Subsidiary at such banks (but not any other Indebtedness or obligations);
(n) all rights of expropriation, access or use or other similar right conferred by or reserved by any federal, state or municipal authority or agency;
(o) any defects irregularities, easements or encroachments that might be revealed by an up-to-date survey of the property;
(p) any municipal by-laws or regulations affecting the Real Property or its use and any other municipal land use instruments including official plans and zoning and building by-laws, as well as decisions of committee of adjustment or any other competent authority permitting variances therefrom, and all applicable building codes which do not interfere in any material respect with the use of such Real Property or ordinary conduct of the business of the Company or any Restricted Subsidiary in the judgment of management of the Company or materially impair the value of the Real Property which may be subject thereto in the judgment of management of the Company;
(q) any agreements with any governmental authority or utility that do not, in the aggregate, have a materially adverse effect on the use or the value of the Real Property and improvements thereon in the judgment of management of the Company;
(r) Liens securing Indebtedness (including Capital Lease Obligations) Incurred by the Company or other obligations any of its Restricted Subsidiaries to finance the purchase, lease, construction or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) within 180 days after such purchase, lease, construction or improvement, provided that the aggregate principal amount of Indebtedness secured by such Liens and incurred in any fiscal year shall not exceed $5.0 million; provided that amounts not used pursuant to this clause (r) in a fiscal year may be carried forward for use in future years;
(s) Liens securing Indebtedness of any Restricted Subsidiary that is not a Subsidiary owing to Guarantor that is (or was at the Borrower or another Subsidiary time of the incurrence) permitted to be incurred in accordance with under Section 6.01;4.03, provided that such Liens extend only to the assets of such Restricted Subsidiary; and
(1t) Liens on specific items of inventory any extension, renewal, refinancing or other goods and proceeds replacement, in whole or in part, of any Loan Party securing Lien described in the foregoing clauses (a), (c), (e), (g), (h), or (r) so long as the Lien is limited to the same property and assets that secured the original Lien (and any proceeds thereof and additions and accessions thereto) and such Loan Party’s obligations in respect extension, renewal, refinancing or replacement complies with the other provisions of bankers’ acceptances issued or created for this Indenture and the account of such Loan Party to facilitate Security Documents, including, the purchase, shipment or storage of such inventory or other goods;provisions described under Section 4.03.
Appears in 1 contract
Limitation on Liens. Holdings and Neither the Borrower will not, and the Borrower will not permit Company nor any of the its Subsidiaries to, directly will create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under mortgage, pledge, security interest, encumbrance, lien or charge of any Indebtedness kind (collectively, "Liens") on any asset its property or property of Holdingsassets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its general creditors, or acquire or agree to acquire, any property or assets upon conditional sales agreement or other title retention devices, except (i) the existing Liens in favor of First Union Bank and (ii) Liens which secure Indebtedness permitted by Section 9.2, and except:
(a) Liens for taxes not yet due and payable and Liens for taxes, assessments and governmental charges or levies which the Company is contesting in good faith by proper proceedings and as to secure Indebtedness incurred under Section 6.01(b)(xxi)which appropriate reserves are being maintained in accordance with GAAP on the books of the Company;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedimposed by law, thatsuch as materialmen's, mechanics', carriers', workmen's and repairmen's liens and other similar liens arising in the case ordinary course of Term Loan First Lien Collateral, business and securing obligations (other than indebtedness for borrowed money) that (A) are not overdue for a period of more than 60 days or (B) are being contested in good faith by proper proceedings and as to which appropriate reserves are being maintained in accordance with GAAP on the Liens books of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Company;
(c) pledges or deposits to secure obligations under worker's compensation laws or other similar legislation or to secure public or statutory obligations;
(d) Liens securing the performance of, or payment in respect of workers’ compensation lawsof, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, government contracts (other than for the payment repayment of Indebtedness) or leasesborrowed money), or deposits to secure public or statutory surety and appeal bonds and other obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case a similar nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxesother encumbrances consisting of zoning restrictions, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedingseasements, if adequate reserves with respect thereto are maintained restrictions on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties property or Liens incidental to minor irregularities in the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each casetitle thereto, which were do not incurred arise in connection with Indebtedness the borrowing of, or any obligation for the payment of, money and which which, in the aggregate, do not in materially detract from the aggregate materially adversely affect the business value of the Borrower and its Subsidiariespremises or the business, taken as a whole;
(h) Liens existing on properties or assets of the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 1 contract
Sources: Convertible Subordinated Loan and Warrant Purchase Agreement (Imagemax Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien that secures obligations under of any Indebtedness kind on any asset property owned by the Company or property such Subsidiary; provided that the foregoing shall not apply to nor operate to prevent (each of Holdingsthe following, the Borrower or any Subsidiary now owned or hereafter acquired, except:a “Permitted Lien”):
(a) Liens to secure Indebtedness incurred under for taxes, assessments, governmental charges or levies; provided that payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens arising under statutes or by operation of law, Liens in connection with worker’s compensation, unemployment insurance, social security and other similar laws (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedthe performance of bids, thattenders, trade, government or other similar contracts, obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, or other Liens of like general nature, in any such case incurred in the case ordinary course of Term Loan First business and not in connection with the creation or incurrence of Indebtedness; provided that (i) any such Lien Collateral, secures only amounts not due and payable or the Liens payment of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the business of the collateral agent under Company and its Subsidiaries taken as a whole or the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor value of the Collateral Agent related property for the benefit purposes of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)such business;
(c) pledges mechanics’, workmen’s, materialmen’s, attorney’s, landlords’, carriers’ or deposits other similar Liens arising in the ordinary course of business and not in connection with the creation or incurrence of Indebtedness and in each such case with respect to obligations which are not due or that are bonded or that are being contested in good faith by appropriate proceedings;
(d) Liens of or resulting from any court proceeding, judgment or award, (i) the time for the appeal or petition for rehearing of which shall not have expired, or (ii) in respect of workers’ compensation lawswhich the Company or a Subsidiary shall be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; provided that the Company or such Subsidiary (1) is contesting such proceeding, unemployment insurance laws judgment or similar legislationaward on a timely basis, in good faith and by appropriate proceedings, and (2) has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary, as the case may be;
(e) Liens securing Indebtedness of a Subsidiary to the Company or to another Wholly-owned Subsidiary;
(f) Liens existing as of the date of the Closing and described on Schedule 5.15(b) hereto;
(g) Liens on property of the Company or any of its Subsidiaries created solely for the purpose of securing purchase money indebtedness (including in connection with the acquisition, construction or improvement of property) or Capitalized Lease Obligations and, representing or incurred to finance, refinance or refund the purchase price of property; provided that no such Lien shall extend to or cover other property of the Company or such Subsidiary other than the respective property so acquired, constructed or improved, and the principal amount of indebtedness secured by any such Lien shall at no time exceed the total purchase price (or cost of construction or improvement) of such property;
(h) Liens existing on property of a Person at the time such Person is consolidated with or merged into the Company or a Subsidiary or becomes a Subsidiary, or good faith 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 (i) 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, (ii) 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 which is an improvement to or is acquired for specific use in connection with such acquired property;
(i) customary rights of set off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code in favor of banks or other financial institutions where the Company or any Subsidiary maintains deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dj) Liens imposed by lawconstituting (i) survey restrictions, such as carriers’encumbrances in the nature of zoning restrictions, landlords’condemnations, suppliers’easements, warehousemen’s and mechanics’ Liensencroachments, covenants, rights of distraint way, defects, irregularities and other similar Liens, in each case, for sums not yet overdue for a period rights or restrictions of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained record on the books title or use of such Loan Party in accordance with GAAP;
real property, and (eii) Liens for taxesleases, assessments subleases, licenses or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject sublicenses granted to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued others in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights business and Liens covering property subject to any lease which was not entered into in violation of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning this Agreement securing the interest of the lessor or other restrictions as to Person under such lease, which in any such case does not materially detract from the value of the subject property or materially impair the use of real properties or Liens incidental to the conduct of thereof in the business of the Borrower Company and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(hk) Liens existing on any encumbrance or restriction (including, but not limited to, put and call agreements, rights of first refusal, and voting or equity holder agreements) with respect to equity or ownership interests in any joint venture or similar arrangement pursuant to any joint venture or similar agreement in any such case not entered into in connection with the Closing Date and set forth on Schedule 1.01(c)creation or incurrence of Indebtedness;
(l) Liens other than those permitted by any of the foregoing subsections (a) through (k); provided that all Indebtedness secured by any such Liens, in the aggregate with all other Consolidated Priority Indebtedness at such time, does not exceed 15% of Consolidated Total Capitalization, calculated in accordance with GAAP; and
(m) any extension, renewal or replacement of any Lien permitted by the preceding clauses (e), (f), (g) and (h) of this Section 10.4; provided that (i) Liens no additional property (other than improvements thereon) shall be encumbered by such Liens, (ii) the unpaid principal amount of Indebtedness secured thereby shall not be increased on property or shares after the date of stock of a Subsidiary such extension, renewal or replacement and (iii) at the time of such extension, renewal or replacement and after giving effect thereto, no Default or Event of Default would exist, including, without limitation, under Sections 10.1, 10.2 and 10.3, with any calculation of compliance therewith to be made as of the end of the immediately preceding fiscal quarter after giving pro forma effect to the extension, renewal or replacement of such Lien. Notwithstanding anything to the contrary contained herein, the Company covenants that it will not, and will not permit any Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created to, create, incur or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend permit to exist any other Lien of any kind on any property owned by the Borrower Company or such Subsidiary to secure any Subsidiary;
(j) Liens on property at Indebtedness of the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens under the Bank Credit Agreement or an Existing Note Agreement unless the Notes and all other respective obligations of the Obligors under this Agreement and of the Subsidiary Guarantors under any Subsidiary Guaranty, as applicable, are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to secured on a pari passu basis (together with any other property owned by Indebtedness so secured, which may include any Indebtedness of the Borrower Company or any Subsidiary;
(kSubsidiary under the Bank Credit Agreement and/or any or all Existing Note Agreements and related notes issued thereunder) Liens securing Indebtedness or other obligations of by a Subsidiary owing lien on such property pursuant to documentation, including an intercreditor agreement, in form and substance reasonably satisfactory to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:except (without duplication):
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedin existence on the date hereof and listed in Part B of Schedule I hereto (excluding, thathowever, in following the case of Term Loan First Lien Collateral, the Liens making of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended initial Loans hereunder, Liens securing Indebtedness to be created in favor repaid with the proceeds of the Collateral Agent for the benefit of the Term Loan Secured Parties (such Loans, as defined in the Intercreditor Agreementindicated on said Schedule I);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries Company or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(cwas not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; PROVIDED that (i) no such Lien shall extend to or cover any Property of the Company or such Subsidiary other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the fair market value (as determined in good faith by a senior financial officer of the Company) of such Property at the time it was acquired (by purchase, construction or otherwise);; and
(i) Liens on property or shares of stock the Property of a Designated Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing permitted pursuant to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(19.07(e) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;hereof.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume assume, or suffer permit to exist any Lien that secures obligations under any Indebtedness on any asset property or property assets (including Equity Interests of Holdings, the Borrower or any Subsidiary of its Subsidiaries) now owned or hereafter acquiredacquired by it or on any income or rights in respect of any thereof, except:
(a) Liens created pursuant to secure Indebtedness incurred or arising under Section 6.01(b)(xxi)any Loan Document;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedimposed by law for taxes, thatassessments, or governmental charges not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted if adequate reserves with respect thereto are maintained in accordance with GAAP on the case of Term Loan First Lien Collateral, the Liens books of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)applicable Person;
(c) pledges Carriers', warehousemen's, mechanics', materialmen's, repairmen's, and other similar Liens imposed by law, arising in the ordinary course of business, and securing obligations that are not overdue by more than thirty (30) days or that are being contested in good faith and by appropriate proceedings diligently conducted;
(d) Pledges and deposits and other Liens (i) made in the ordinary course of business in compliance with workers' compensation, unemployment insurance, and other social security laws or regulations and (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of workers’ compensation lawsletters of credit or bank guarantees for the benefit of) insurance carriers providing property, unemployment insurance laws or similar legislationcasualty, or good faith deposits liability insurance to the Borrower or another Loan Party;
(e) Liens (including deposits) to secure the performance of bids, tenders, contracts (other than for the payment of Indebtedness) or trade contracts, leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or and appeal bonds, or deposits as security for contested taxes or import duties or for the payment performance bonds, and other obligations of rentlike nature, in each case incurred in the ordinary course of business;
(df) Easements, zoning restrictions, rights-of-way, minor defects or irregularities in title, and similar encumbrances on real property imposed by law or arising in the ordinary course of business which, in the aggregate, are not material in amount and which do not materially detract from the value of the affected property or interfere materially with the ordinary conduct of business of the Borrower or any of its Subsidiaries;
(g) Liens imposed on fixed or capital assets acquired, constructed, or improved by lawthe Borrower or any other Loan Party after the date hereof; provided that (i) such security interests secure Debt permitted by Section 7.01(c), (ii) such as carriers’Liens and the Debt secured thereby are incurred simultaneously with such acquisition or the completion of such construction or improvement, landlords’(iii) such Liens shall not apply to any other property or assets of the Borrower or any other Loan Party, suppliers’and (iv) the amount of Debt initially secured thereby is not more than 100% of the purchase price or construction or improvement cost of such fixed or capital asset;
(h) To the extent such transactions create a Lien thereunder, warehousemen’s liens in favor of lessors securing operating leases or sale and mechanics’ Liens, rights of distraint and other similar Liensleaseback transactions, in each casecase to the extent such operating leases or sale and leaseback transactions are permitted under the terms of this Agreement;
(i) Any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any other Loan Party or any Lien existing on any property or asset of any Person that becomes a Subsidiary of the Borrower or any other Loan Party at the time such Person becomes a Subsidiary of the Borrower or other Loan Party; provided that (i) such Lien is not created in contemplation of, for sums or in connection with, such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall apply to the same category, type, and scope of assets, and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and any refinancing, refunding, extension, renewal, or replacement thereof that does not yet overdue for a period increase the outstanding principal amount thereof plus any accrued interest, premium, fee, and reasonable and documented out-of-pocket expenses payable in connection with any such refinancing, refunding, extension, renewal, or replacement;
(j) Judgment or other similar Liens in connection with legal proceedings in an aggregate principal amount up to $50,000 which, whether immediately or with the passage of more than thirty time (30i) days or do not give rise to an Event of Default under Section 8.01(h) and (ii) are being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPdiligently conducted;
(ek) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period upon assets of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as subject to Capitalized Lease Obligations to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
extent such Capitalized Lease Obligations are permitted by Section 7.01; provided that (i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are only serve to secure the payment of Debt arising under such Capitalized Lease Obligation and (ii) the Lien encumbering the asset giving rise to the Capitalized Lease Obligation does not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to encumber any other property owned by asset of the Borrower or any Subsidiaryof its Subsidiaries;
(jl) Liens arising from precautionary Uniform Commercial Code financing statement filings solely as a precautionary measure in connection with operating leases or consignment of goods; and (m) Any other Liens on property at not otherwise permitted by this Section 7.02 so long as neither (i) the time aggregate principal amount of the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or Debt and other obligations secured thereby nor (ii) the aggregate fair market value (determined as of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1date such Lien is incurred) Liens on specific items of inventory or other goods and proceeds of the assets subject thereto exceeds $50,000 at any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;time outstanding.
Appears in 1 contract
Sources: Loan Agreement (Air T Inc)
Limitation on Liens. Holdings and the Borrower will The Company shall not, and the Borrower will not nor shall it permit any ------------------- of the its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset part of its property or property of Holdingsassets, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:or offer or agree to do so, other than the following ("Permitted Liens"):
(a) Liens to secure Indebtedness incurred created under Section 6.01(b)(xxi)this Agreement;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or other similar Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, arising in the case ordinary course of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created business which are not delinquent or remain payable without penalty or which are being contested in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)good faith and by appropriate proceedings;
(c) Liens (other than any Lien imposed by ERISA) on the property of the Company or any of its Subsidiaries incurred, or pledges or deposits required, in respect of workers’ compensation lawsconnection with workmen's compensation, unemployment insurance laws or similar and other social security legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or securing taxes that remain payable or subject to penalties for nonpayment without penalty or which are being contested in good faith by appropriate proceedings, if adequate proceedings where collection thereof is stayed; provided that the Company has set aside on its books reserves -------- with respect thereto are maintained to such taxes (segregated to the extent required by GAAP) deemed by it to be adequate;
(e) Purchase money security interests on any property acquired or held by the books Company in the ordinary course of business securing Indebtedness incurred or assumed for the purpose of financing all or any part of the applicable Loan Party cost of acquiring such property; provided that any such Lien attaches to such property -------- concurrently with or within 90 days after the acquisition thereof and provided that the principal amount of the Indebtedness secured by any such purchase money security interests shall not in accordance with GAAPthe aggregate exceed 2.5% of the Consolidated Capitalization of the Company and its Subsidiaries;
(f) Liens in favor Any right which any municipal or governmental body or agency may have by virtue of issuers any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any property of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing the Company upon payment of insurance premiumsreasonable compensation therefor or to terminate any franchise, leases to which the Borrower or any of its Subsidiaries is a party license or other similar obligations rights or letters to regulate the property and business of credit issued in the ordinary course of its businessCompany;
(g) minor survey exceptionsAny liens, minor encumbrancesneither assumed by the Company nor on which it customarily pays interest, easements or reservations of, existing upon real estate or rights of others forin or relating to real estate acquired by the Company for sub-station, licensesmeasuring station, rightsregulating station, gas purification station, compressor station, transmission line, distribution line or right-of-wayway purposes;
(h) Easements or reservations in any property of the Company for the purpose of roads, sewerspipe lines, gas transmission and distribution lines, electric light and power transmission and distribution lines, telegraph and telephone lines water mains and other similar like purposes, or and zoning or other ordinances, regulations and restrictions as to which do not impair the use of real properties or Liens incidental to such property in the conduct operation of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);Company; and
(i) Liens on property or shares of stock of a Subsidiary not otherwise permitted by this Section 7.1 if at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation ----------- of, and after giving effect to, the creation or assumption of any such other Person becoming such a Subsidiary Guarantor; providedLien, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means aggregate of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other all obligations of a Subsidiary owing to the Borrower or another Subsidiary Company secured by any Liens not otherwise permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items hereby does not exceed 5% of inventory or other goods the Consolidated Capitalization of the Company and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Oneok Inc /New/)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, 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, without making effective provisions whereby all of the Notes shall be directly secured equally and ratably with all of the other obligations secured thereby (and providing to the holders of the Notes an opinion satisfactory in form and substance to the holders of the Notes from counsel satisfactory to the holders of the Notes to the effect that the Notes are so secured) except:
(a) Liens to secure Indebtedness incurred under 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 time required by Section 6.01(b)(xxi)9.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the ownership of properties and assets (including but not limited to warehousemen's and attorneys' liens and statutory landlords' liens) and specific Liens including but not limited to pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits Securities to secure bidsdeposits, tenders, contracts (and other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Liens incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each casecase the obligation secured is not overdue or, for sums not yet overdue for a period of more than thirty (30) days or if overdue, is being contested in good faith by appropriate actions or proceedings the effect of which is to stay or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books prevent enforcement of such Loan Party in accordance with GAAPLien;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company and its Subsidiaries or which customarily exist on properties of corporations or other business entities engaged in similar activities and similarly situated and which do not in any event, individually or in the aggregate, materially impair their use in the operation of the business of the Borrower Company and its Subsidiaries Restricted Subsidiaries;
(e) Liens existing on fixed assets at the time of acquisition thereof by the Company or a Subsidiary or Liens existing on fixed assets owned by a business entity at the time such entity is acquired by the Company or a Subsidiary; provided that (i) any such Lien shall attach only to the fixed assets so acquired or to the ownership of their propertiesfixed assets owned by the business entity so acquired, in each caseas the case may be, which were (ii) the Lien and the Indebtedness secured thereby shall not have been incurred in connection with contemplation of the acquisition, and (iii) all Indebtedness and which do not secured by any such Lien shall have been incurred within the applicable limitations of Section 10.5;
(f) in the aggregate materially adversely affect the business event of a consolidation or merger of the Borrower Company in compliance with Section 10.1(c) where the surviving corporation is not the Company (the surviving corporation being the “Acquiring Corporation”), Liens existing on assets of the Acquiring Corporation and its Subsidiariessubsidiaries at the time of the consolidation or merger, taken as the case may be, so long as (i) the Lien shall attach only to the assets to which the Lien was attached at the time of the consolidation or merger, and (ii) the Lien and the Indebtedness secured thereby shall not have been incurred in contemplation of such consolidation or merger;
(g) Liens securing Indebtedness of a wholeRestricted Subsidiary to the Company;
(h) Liens existing on as of the date of the Closing Date and set forth on Schedule 1.01(c)10.4;
(i) Liens incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition of fixed assets useful and intended to be used in carrying on property the business of the Company or shares of stock of a Subsidiary Restricted Subsidiary, including Finance Leases; provided that (i) the Lien shall attach solely to the fixed assets purchased, (ii) at the time of acquisition of such Subsidiary becomes a Subsidiary Guarantor; provided that fixed assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such Liens are fixed assets whether or not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned assumed by the Borrower Company or a Restricted Subsidiary shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition of such fixed assets (as determined in good faith by the Board of Directors of the Company), (iii) the aggregate of all amounts so financed outstanding at any Subsidiarytime on and after the date of the Closing by the Company and its Restricted Subsidiaries shall not exceed the greater of (A) $10,000,000 or (B) 10% of Consolidated Net Worth, and (iv) all such Indebtedness shall have been incurred within the applicable limitations provided in Section 10.5;
(j) Liens on the property at of the time the Borrower Company securing its mortgage bonds issued pursuant to a mortgage bond indenture or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisitionother governing instrument; provided, further, that the Liens may not extend (A) such mortgage bond indenture or governing instrument shall have been consented to any other property owned in writing by the Borrower or Required Holders and (B) provision shall have been made concurrently with the issuance of any Subsidiary;such mortgage bonds for the Notes to be equally and ratably secured by the Lien securing such mortgage bonds; and
(k) renewals and extensions of Liens securing permitted pursuant to clauses (a) through (j) of this Section 10.4 given to secure the renewal, extension or replacement of the Indebtedness secured thereby without increase in the principal amount of such Indebtedness outstanding at the time of such renewal, extension or other obligations of a Subsidiary owing replacement, which Liens attach solely to the Borrower property theretofore securing such Indebtedness. Notwithstanding the foregoing provisions of this Section 10.4, the Company shall not, and shall not permit any Restricted Subsidiary to, create or another Subsidiary permitted incur, or suffer to be incurred in accordance or to exist, any Lien securing obligations owing under any Material Credit Facility on or with Section 6.01;
respect to any property or asset (1) Liens on specific items of inventory including, without limitation, any document or other goods and proceeds of any Loan Party securing such Loan Party’s obligations instrument in respect of bankers’ acceptances issued goods or created for accounts receivable) of the account Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, unless the Company or such Restricted Subsidiary makes effective provision whereby the Notes shall be equally and ratably with all such obligations pursuant to such agreements (including, without limitation, an intercreditor agreement), certificates, legal opinions, showings and other instruments reasonably satisfactory to the holders as such holders may reasonably require to evidence and retain the pari passu ranking of the obligations of the Company with respect to the Notes and such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Material Credit Facility.
Appears in 1 contract
Sources: Note Purchase Agreement (SJW Group)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, 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, without making effective provisions whereby all of the Notes shall be directly secured equally and ratably with all of the other obligations secured thereby (and providing to the holders of the Notes an opinion satisfactory in form and substance to the holders of the Notes from counsel satisfactory to the holders of the Notes to the effect that the Notes are so secured) except:
(a) Liens to secure Indebtedness incurred under 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 time required by Section 6.01(b)(xxi)5.3;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Restricted Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the ownership of properties and assets (including but not limited to warehousemen’s and attorneys’ liens and statutory landlords’ liens) and specific Liens including but not limited to pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits Securities to secure bidsdeposits, tenders, contracts (and other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Liens incurred in the ordinary course of business;
(d) Liens imposed by lawbusiness and not in connection with the borrowing of money, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, provided in each casecase the obligation secured is not overdue or, for sums not yet overdue for a period of more than thirty (30) days or if overdue, is being contested in good faith by appropriate actions or proceedings the effect of which is to stay or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books prevent enforcement of such Loan Party in accordance with GAAPLien;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company 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, individually or in the aggregate, materially impair their use in the operation of the business of the Borrower Company and its Subsidiaries Restricted Subsidiaries;
(e) Liens existing on fixed assets at the time of acquisition thereof by the Company or a Restricted Subsidiary or Liens existing on fixed assets owned by a business entity at the time such entity is acquired by the Company or a Restricted Subsidiary, provided that (i) any such Lien shall attach only to the fixed assets so acquired or to the ownership of their propertiesfixed assets owned by the business entity so acquired, in each caseas the case may be, which were (ii) the Lien and the Indebtedness secured thereby shall not have been incurred in connection with contemplation of the acquisition, and (iii) all Indebtedness and which do not secured by any such Lien shall have been incurred within the applicable limitations of Section 5.6;
(f) in the aggregate materially adversely affect the business event of a consolidation or merger of the Borrower Company in compliance with Section 5.10(a)(3) where the surviving corporation is not the Company (the surviving corporation being the “Acquiring Corporation”), Liens existing on assets of the Acquiring Corporation and its Subsidiariessubsidiaries at the time of the consolidation or merger, taken as the case may be, so long as (i) the Lien shall attach only to the assets to which the Lien was attached at the time of the consolidation or merger, and (ii) the Lien and the Indebtedness secured thereby shall not have been incurred in contemplation of such consolidation or merger;
(g) Liens securing Indebtedness of a wholeRestricted Subsidiary to the Company;
(h) Liens existing on as of the Closing Execution Date and set forth on reflected in Schedule 1.01(c)IV hereto;
(i) Liens incurred after the Execution Date given to secure the payment of the purchase price incurred in connection with the acquisition of fixed assets useful and intended to be used in carrying on property the business of the Company or shares of stock of a Subsidiary Restricted Subsidiary, including Capitalized Leases, provided that (i) the Lien shall attach solely to the fixed assets purchased, (ii) at the time of acquisition of such Subsidiary becomes a Subsidiary Guarantor; provided that fixed assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such Liens are fixed assets whether or not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned assumed by the Borrower Company or a Restricted Subsidiary shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition of such fixed assets (as determined in good faith by the Board of Directors of the Company), (iii) the aggregate of all amounts so financed outstanding at any Subsidiarytime on and after the Execution Date by the Company and its Restricted Subsidiaries shall not exceed the greater of
(A) $10,000,000 or (B) 10% of Consolidated Net Worth, and (iv) all such Indebtedness shall have been incurred within the applicable limitations provided in Section 5.6;
(j) Liens on the property at of the time Company securing the Borrower Company’s mortgage bonds issued pursuant to a mortgage bond indenture or a Subsidiary Guarantor acquired the propertyother governing instrument, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend (A) such mortgage bond indenture or governing instrument shall have been consented to any other property owned in writing by the Borrower or holders of at least 66-2/3% in aggregate principal amount of the outstanding Notes and (B) provision shall have been made concurrently with the issuance of any Subsidiary;such mortgage bonds for the Notes to be equally and ratably secured by the Lien securing such mortgage bonds; and
(k) renewals and extensions of Liens securing permitted pursuant to clauses (a) through (j) of this Section 5.7 given to secure the renewal, extension or replacement of the Indebtedness secured thereby without increase in the principal amount of such Indebtedness outstanding at the time of such renewal, extension or other obligations of a Subsidiary owing replacement, which Liens attach solely to the Borrower property theretofore securing such Indebtedness. In case any property or another assets of the Company or any of its Restricted Subsidiaries is subjected to a Lien in violation of this Section 5.7, the holders of the Notes shall immediately have and enjoy the benefit of an equitable Lien on such property and assets, securing the Notes, to the full extent that, and with such priority as, the holders may be entitled to under applicable law. Notwithstanding the foregoing provisions of this Section 5.7, the Company shall not, and shall not permit any Restricted Subsidiary permitted to, create or incur, or suffer to be incurred in accordance or to exist, any Lien securing obligations owing under any Material Credit Facility on or with Section 6.01;
respect to any property or asset (1) Liens on specific items of inventory including, without limitation, any document or other goods and proceeds of any Loan Party securing such Loan Party’s obligations instrument in respect of bankers’ acceptances issued goods or created for accounts receivable) of the account Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or provide any Guaranty of such Loan Party obligations, unless the Company or such Restricted Subsidiary makes effective provision whereby the Notes shall be equally and ratably secured or guarantied with all such obligations pursuant to facilitate such agreements (including, without limitation, an intercreditor agreement), certificates, legal opinions, showings and other instruments reasonably satisfactory to the purchase, shipment or storage holders as such holders may reasonably require to evidence and retain the pari passu ranking of the obligations of the Company and its Restricted Subsidiaries with respect to the Notes and such inventory or other goods;Material Credit Facility.
Appears in 1 contract
Sources: Note Agreement (SJW Corp)
Limitation on Liens. Holdings and the Borrower The Parent Corporation will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets (including, without limitation, Intercompany Obligations and instruments evidencing the Borrower or any Subsidiary same), whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)for taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics, workmen, carriers and materialmen; provided that payment thereof is not at the time required by SECTION 9.1.4 or SECTION 9.2.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Parent Corporation or a Subsidiary shall at all times in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation connection with worker's compensation, unemployment insurance, social security and other like laws, unemployment insurance laws warehousemen's and attorneys' liens and statutory landlords' liens), Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds (including pledges, deposits and other security arrangements, together with related letters of credit and performance and indemnity bonds) or other Liens of like general nature, and the retained interest of landlords in connection with property leased by the Parent Corporation or deposits as security for contested taxes or import duties or for the payment any of rentits Subsidiaries, in each any such case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Parent Corporation 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 or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower Parent Corporation and its Subsidiaries, taken as a whole;
(he) Liens attaching to Receivables sold or pledged by the Parent Corporation or a Subsidiary in connection with any Securitization Transaction, provided that the Debt incurred in connection with such Securitization Transaction shall be permitted within the applicable provisions of this Agreement (including, without limitation, under SECTIONS 10.1 and 10.2 hereof);
(f) Liens existing as of the date of the Closing and described on SCHEDULE 5.1.15 hereto;
(g) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in carrying on the Closing Date business of the Parent Corporation or a Subsidiary, whether or not such existing Liens were given to secure the payment of the acquisition or purchase price or cost of
(i) the Lien shall attach solely to the property or assets acquired, purchased or constructed, (ii) such Lien shall have been created or incurred within 90 days of the date of acquisition or purchase or completion of construction, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Parent Corporation or a Subsidiary, shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition or purchase (as determined in good faith by the Board of Directors of the Parent Corporation) or the cost of construction on the date of completion thereof, and set forth (iv) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist (including, without limitation, under SECTIONS 10.1 and 10.2 hereof);
(h) any Lien existing on Schedule 1.01(cproperty or assets of a corporation at the time such corporation is consolidated with or merged into the Parent Corporation or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property or assets acquired by the Parent Corporation or any Subsidiary at the time such property or assets are so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) each such Lien shall extend solely to the property or assets so acquired, (ii) 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 (iii) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist (including, without limitation, under SECTIONS 10.1 and 10.2 hereof);
(i) Liens on any extension, renewal or refunding of any Lien permitted by the preceding clauses (f), (g) or (h) of this SECTION 10.5 in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or shares refunding of stock the Debt secured thereby; provided that (i) such extension, renewal or refunding of a Subsidiary Debt shall be without increase in the principal amount remaining unpaid as of the date of such extension, renewal or refunding, (ii) such Lien shall attach solely to the same such property, and (iii) at the time of such Subsidiary becomes a Subsidiary Guarantorextension, renewal or refunding and after giving effect thereto, no Default or Event of Default would exist (including, without limitation, under SECTIONS 10.1 and 10.2 hereof); provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(j) Liens on property created or incurred after the date of the Closing given to secure Debt of the Parent Corporation or any Subsidiary in addition to the Liens permitted by the preceding clauses (a) through (i) hereof; provided that at the time of creation, issuance, assumption, guarantee or incurrence of the Borrower Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist (including, without limitation, under SECTIONS 10.1 and 10.2 hereof). For the purposes of this SECTION 10.5, any Person becoming a Subsidiary Guarantor acquired after the propertydate of this Agreement shall be deemed to have incurred all of its then outstanding Liens at the time it becomes a Subsidiary, including and any acquisition Person extending, renewing or refunding any Debt secured by means of a merger or consolidation with or into any Lien shall be deemed to have incurred such Lien at the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account time of such Loan Party to facilitate the purchaseextension, shipment renewal or storage of such inventory or other goods;refunding.
Appears in 1 contract
Sources: Note Purchase Agreement (Swift Transportation Co Inc)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation does not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by ▇▇▇▇▇ referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 4.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (a) in Section 4.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 10% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 1 contract
Sources: Second Supplemental Indenture (Labcorp Holdings Inc.)
Limitation on Liens. Holdings and None of the Borrower Borrowers will, nor will not, and the Borrower will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi);the Security Documents; Credit Agreement
(b) Liens in existence on the date hereof and listed in Part B of Schedule III hereto (or, to secure Indebtedness incurred under the extent not meeting the minimum thresholds for required listing on said Schedule III pursuant to Section 6.01(b)(i); provided, that7.11 hereof, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreementan aggregate amount not exceeding $10,000,000);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens ▇▇▇▇▇ imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Borrowers or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 9.01(i) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries Borrowers or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;; and
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Borrowers or any of their Subsidiaries and securing Indebtedness permitted under Section 8.07(f) hereof, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(c);
was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided that (i) Liens on property no such Lien shall extend to or shares of stock cover any Property of a Borrower or any such Subsidiary other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the fair market value (as determined in good faith by a Senior Officer) of such Property at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned it was acquired (by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment construction or storage of such inventory or other goods;otherwise). Credit Agreement
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly create or indirectly, create, incur, or assume or suffer permit to exist exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness for property taxes, assessments or other governmental charges which are not yet due and payable and Liens securing claims or demands of mechanics, landlords, carriers, warehousemen, materialmen and other such Liens incurred under in the ordinary course of business for sums not yet due and payable; provided that payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of the Company's and its Subsidiaries' business or deposits the ownership of properties and assets (including Liens in respect of connection with workers’ compensation laws' compensation, unemployment insurance laws and other like laws, warehousemen's and attorneys' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rentlike general nature, in each any such case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(ed) Liens for taxes, assessments survey exceptions or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations ofeasements, reservations, leases, subleases or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens properties, which are incidental to for the conduct of the activities of the Company 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 or detract from their value in the operation of the business of the Borrower Company and its Subsidiaries Subsidiaries;
(e) Liens securing Debt of the Company or a Subsidiary to the Company or to another Wholly-owned Subsidiary;
(f) Liens existing as of the ownership date of their properties, in each case, which were not the Closing and described on Schedule 5.15 hereto;
(g) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with Indebtedness the acquisition or purchase or the cost of construction or improvement of property or of assets useful and which do not intended to be used in the aggregate materially adversely affect carrying on the business of the Borrower Company or a Subsidiary, including Liens existing on such property or assets at the time of acquisition or purchase thereof or at the time of completion of construction or improvement, as the case may be, whether or not such existing Liens were given to secure the payment of the acquisition or purchase price or cost of construction or improvement, as the case may be, of the property or assets to which they attach; provided that (i) the Lien shall attach solely to the property or assets acquired, purchased, constructed or improved, (ii) such Lien shall have been created or incurred contemporaneously with or within 180 days of the date of acquisition or purchase or completion of construction or improvement, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Company or a Subsidiary, shall not exceed an amount equal to 100% of the lesser of (1) the total purchase price or (2) fair market value at the time of acquisition or purchase (as determined in good faith by the Board of Directors of the Company) or the cost of construction or improvement on the date of completion thereof, and its Subsidiaries(iv) at the time of creation, taken as a wholeissuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist;
(h) Liens any Lien existing on property or assets of a Person at the Closing Date time such Person is consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property or assets acquired by the Company or any Subsidiary at the time such property or assets are so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) each such Lien shall extend solely to the property or assets so acquired, (ii) such Lien shall not have been created or assumed in contemplation of such consolidation, merger or acquisition, and set forth on Schedule 1.01(c)(iii) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist;
(i) Liens on property created or shares incurred after the date of stock the Closing given to secure Debt of a the Company or any Subsidiary in addition to the Liens permitted by the preceding clauses (a) through (h) hereof; provided that (i) all Debt secured by such Liens shall have been incurred within the limitations provided in Section 10.2 and (ii) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Subsidiary becomes a Subsidiary GuarantorLien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(j) Liens on any extension, renewal or refunding of any Lien permitted by the preceding clauses (f) through (h) of this Section 10.3 in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or refunding of the Debt secured thereby; provided that (i) such extension, renewal or refunding of Debt shall be without increase in the principal amount remaining unpaid as of the date of such extension, renewal or refunding, (ii) such Lien shall attach solely to the same property, (iii) the maturity date of such Debt shall not be shortened in connection with such extension, renewal or refunding, and (iv) at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchaseextension, shipment renewal or storage refunding and after giving effect thereto, no Default or Event of such inventory or other goods;Default would exist.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien that secures obligations under of any Indebtedness kind on any asset property owned by the Company or property such Subsidiary; provided that the foregoing shall not apply to nor operate to prevent (each of Holdingsthe following, the Borrower or any Subsidiary now owned or hereafter acquired, except:a “Permitted Lien”):
(a) Liens to secure Indebtedness incurred under for taxes, assessments, governmental charges or levies; provided that payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens arising under statutes or by operation of law, Liens in connection with worker’s compensation, unemployment insurance, social security and other similar laws (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedthe performance of bids, thattenders, trade, government or other similar contracts, obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, or other Liens of like general nature, in any such case incurred in the case ordinary course of Term Loan First business and not in connection with the creation or incurrence of Indebtedness; provided that (i) any such Lien Collateral, secures only amounts not due and payable or the Liens payment of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the business of the collateral agent under Company and its Subsidiaries taken as a whole or the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor value of the Collateral Agent related property for the benefit purposes of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)such business;
(c) pledges mechanics’, workmen’s, materialmen’s, attorney’s, landlords’, carriers’ or deposits other similar Liens arising in the ordinary course of business and not in connection with the creation or incurrence of Indebtedness and in each such case with respect to obligations which are not due or that are bonded or that are being contested in good faith by appropriate proceedings;
(d) Liens of or resulting from any court proceeding, judgment or award, (i) the time for the appeal or petition for rehearing of which shall not have expired, or (ii) in respect of workers’ compensation lawswhich the Company or a Subsidiary shall be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; provided that the Company or such Subsidiary (1) is contesting such proceeding, unemployment insurance laws judgment or similar legislationaward on a timely basis, in good faith and by appropriate proceedings, and (2) has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary, as the case may be;
(e) Liens securing Indebtedness of a Subsidiary to the Company or to another Wholly-owned Subsidiary;
(f) Liens existing as of the date of the Closing and described on Schedule 5.15 hereto;
(g) Liens on property of the Company or any of its Subsidiaries created solely for the purpose of securing purchase money indebtedness (including in connection with the acquisition, construction or improvement of property) or Capitalized Lease Obligations and, representing or incurred to finance, refinance or refund the purchase price of property; provided that no such Lien shall extend to or cover other property of the Company or such Subsidiary other than the respective property so acquired, constructed or improved, and the principal amount of indebtedness secured by any such Lien shall at no time exceed the total purchase price (or cost of construction or improvement) of such property;
(h) Liens existing on property of a Person at the time such Person is consolidated with or merged into the Company or a Subsidiary or becomes a Subsidiary, or good faith 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 (i) 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, (ii) 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 which is an improvement to or is acquired for specific use in connection with such acquired property;
(i) customary rights of set off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code in favor of banks or other financial institutions where the Company or any Subsidiary maintains deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dj) Liens imposed by lawconstituting (i) survey restrictions, such as carriers’encumbrances in the nature of zoning restrictions, landlords’condemnations, suppliers’easements, warehousemen’s and mechanics’ Liensencroachments, covenants, rights of distraint way, defects, irregularities and other similar Liens, in each case, for sums not yet overdue for a period rights or restrictions of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained record on the books title or use of such Loan Party in accordance with GAAP;
real property, and (eii) Liens for taxesleases, assessments subleases, licenses or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject sublicenses granted to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued others in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights business and Liens covering property subject to any lease which was not entered into in violation of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning this Agreement securing the interest of the lessor or other restrictions as to Person under such lease, which in any such case does not materially detract from the value of the subject property or materially impair the use of real properties or Liens incidental to the conduct of thereof in the business of the Borrower Company and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(hk) Liens existing on any encumbrance or restriction (including, but not limited to, put and call agreements, rights of first refusal, and voting or equity holder agreements) with respect to equity or ownership interests in any joint venture or similar arrangement pursuant to any joint venture or similar agreement in any such case not entered into in connection with the Closing Date and set forth on Schedule 1.01(c)creation or incurrence of Indebtedness;
(l) Liens other than those permitted by any of the foregoing subsections (a) through (k); provided that all Indebtedness secured by any such Liens, in the aggregate with all other Consolidated Priority Indebtedness at such time, does not exceed 15% of Consolidated Total Capitalization, calculated in accordance with Agreement Accounting Principles; and
(m) any extension, renewal or replacement of any Lien permitted by the preceding clauses (e), (f), (g) and (h) of this Section 10.4; provided that (i) Liens no additional property (other than improvements thereon) shall be encumbered by such Liens, (ii) the unpaid principal amount of Indebtedness secured thereby shall not be increased on property or shares after the date of stock of a Subsidiary such extension, renewal or replacement and (iii) at the time of such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created extension, renewal or incurred in connection withreplacement and after giving effect thereto, no Default or in contemplation ofEvent of Default would exist, such other Person becoming such a Subsidiary Guarantor; providedincluding, furtherwithout limitation, that such Liens may not extend under Sections 10.1, 10.2 and 10.3, with any calculation of compliance therewith to any other property owned by be made as of the Borrower or any Subsidiary;
(j) Liens on property at end of the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing immediately preceding fiscal quarter after giving pro forma effect to the Borrower extension, renewal or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account replacement of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Lien.
Appears in 1 contract
Limitation on Liens. Holdings and the The Borrower will shall not, and the Borrower will shall not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred created hereunder or under Section 6.01(b)(xxi)any of the other Loan Documents;
(b) Liens on real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the time of its acquisition and was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to secure Indebtedness incurred under Section 6.01(b)(i); providedfinance, that, in the case of Term Loan First Lien Collateralrefinance or refund, the Liens cost (including the cost of construction) of such Property; provided that (i) no such Lien shall extend to or cover any Property of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);Borrower or any such Subsidiary other than the
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than Liens for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Borrower or its Subsidiaries, as the case may be, in accordance conformity with GAAP;
(fd) Liens in favor created by operation of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits law not securing the payment of insurance premiumsIndebtedness for money borrowed or guaranteed, leases to which the Borrower or any of its Subsidiaries is a party including carriers', warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business which are not overdue for a period of more than 30 days or which are being contested in good faith by appropriate proceedings and Liens securing judgments but only to the extent, for an amount and for a period not resulting in an Event of Default under Section 7(i);
(e) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposes, or zoning or other restrictions as to encumbrances incurred in the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were would not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as cause a wholeMaterial Adverse Effect;
(h) Liens existing on the Closing Date date hereof and set forth on referred to in Schedule 1.01(c6.3 (and not referred to in any other clause of this Section 6.3);; and
(i) Liens on property or shares in favor of stock of a Subsidiary at The Chase Manhattan Bank under the time such Subsidiary becomes a Subsidiary Guarantor; Existing Credit Agreement, provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
shall have been released (j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; and evidence thereof provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1Agent) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for within three Business Days following the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Closing Date.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will shall not, and the Borrower will shall not suffer or permit any U.S. Subsidiary to, including, without limitation, following the expiration of the Subsidiaries toOveradvance Subfacility, directly or indirectly, make, create, incur, assume or suffer to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset or property part of Holdingsits property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:other than the following (“Permitted Liens”):
(a) Liens to secure Indebtedness incurred Any Lien created under Section 6.01(b)(xxi)any Loan Document;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Any Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of Bank, W▇▇▇▇ Fargo Equipment Finance, Inc., Associated Bank Leasing Division of Associated Bank, National Association, CIT Finance LLC, any lessor party to a Capital Lease secured solely by property financed under such Capital Lease, or which is existing as of, and disclosed to Bank in writing prior to, the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)date hereof;
(c) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty, or to the extent that non‑payment thereof is permitted by Section 4.7, provided that no notice of lien has been filed or recorded under the Internal Revenue Code of 1986, and regulations promulgated thereunder;
(d) Carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business which are not delinquent or remain payable without penalty;
(e) Liens (other than any Lien imposed by ERISA other than as a result of any action or inaction taken by Borrower) consisting of pledges or deposits required in respect the ordinary course of business in connection with workers’ compensation lawscompensation, unemployment insurance laws and other social security legislation;
(f) Liens on the property of Borrower or similar legislation, or good faith deposits to secure its U.S. Subsidiaries securing (i) the non-delinquent performance of bids, tenders, trade contracts (other than for the payment of Indebtedness) or borrowed money), leases, or deposits to secure public or statutory obligations, (ii) contingent obligations or deposits of cash or U.S. government bonds to secure on surety or and appeal bonds, or deposits as security for contested taxes or import duties or for the payment and (iii) other non-delinquent obligations of rent, a like nature; in each case case, incurred in the ordinary course of business, provided that all such Liens in the aggregate at any time outstanding for Borrower and its Subsidiaries do not exceed $100,000;
(dg) Liens imposed by lawconsisting of judgment or judicial attachment liens, provided that the enforcement of such as carriers’Liens is effectively stayed and all such Liens in the aggregate at any time outstanding for Borrower and its U.S. Subsidiaries do not exceed $100,000; and
(h) Easements, landlords’rights‑of‑way, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint restrictions and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued encumbrances incurred in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were are not incurred substantial in connection with Indebtedness amount, and which do not in any case materially detract from the aggregate materially adversely affect the business value of the property subject thereto or interfere with the ordinary conduct of the businesses of Borrower and its U.S. Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);.
(i) Liens on property or shares In connection with the sale of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred receivables permitted in connection withSection 5.4 above, or in contemplation ofBorrower is authorized to permit Deutsche Bank AG, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend New York Branch to any other property owned by the file precautionary financing statements against Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(the terms of that certain Acknowledgment, Consent and Release Agreement dated as of December 1, 2011 executed by Bank, Borrower and Deutsche Bank AG, New York Branch and to permit the purchasers party to the agreements referenced in Sections 5.4(c) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for 5.4(d) above to file UCC financing statements against Borrower reflecting the account interests of such Loan Party to facilitate purchasers in the purchase, shipment or storage of such inventory or other goods;corresponding receivables.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower (a) Delphi LLP will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien that secures obligations under (the “Initial Lien”) of any Indebtedness nature whatsoever on any asset Principal Property or property Capital Stock of Holdingsa Restricted Subsidiary, whether owned at the Borrower Issue Date or any Subsidiary now owned or hereafter thereafter acquired, except:which Initial Lien secures any Indebtedness, without effectively providing that the Notes of the applicable series shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured other than the following (“Permitted Liens”):
(a1) Liens securing Indebtedness under Credit Facilities in an aggregate principal amount not to secure Indebtedness incurred under Section 6.01(b)(xxi)exceed $2,075 million;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c2) pledges or deposits in respect of by such Person under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases, subleases, licenses or sublicenses to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. United States government bonds to secure surety surety, stay, customs, replevin or appeal bondsbonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d3) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens’, rights of distraint materialman’s, repairman’s, landlord’s, ▇▇▇▇▇▇▇’▇, supplier’s and other similar like Liens, in each case, case for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which the applicable Loan Party such Person shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e4) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment non-payment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f5) Liens in favor of issuers of surety or performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit, bank guarantees, bankers’ acceptances or similar credit transactions issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(g6) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties property or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries such Person or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and its properties which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of the Borrower and its Subsidiaries, taken as a wholesuch Person;
(h7) Liens securing Indebtedness incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, property of such Person; provided, however, that the Lien may not extend to any other property (other than accessions thereto, proceeds and products thereof and property related to the property being financed or through cross-collateralization of individual financings of equipment provided by the same lender) owned by such Person or any of its Subsidiaries at the time the Lien is incurred, and the Indebtedness (other than any interest thereon) secured by the Lien may not be incurred more than 270 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien;
(8) Liens existing on the Closing Issue Date and set forth extensions, renewals, refinancings and replacements of any such Liens (including any future Liens securing Indebtedness that Delphi LLP designates as a “replacement” of such Liens for purposes of this clause, even if such new Indebtedness is not issued concurrently with the repayment of the indebtedness so secured, the proceeds thereof are not used to repay such Indebtedness secured by such Liens or such Indebtedness is incurred for different purposes and by a different borrower) so long as the principal amount of Indebtedness (including for this purpose, revolving commitments under the Credit Agreement as in effect on Schedule 1.01(cthe Issue Date immediately before the issuance of the Notes, which shall be deemed to be outstanding for these purposes even if undrawn) or other obligations secured thereby is not increased (other than to cover premiums, fees, accrued interest and any expenses of such extension, renewal, refinancing or replacement) and so long as such Liens are not extended to any other property of Delphi LLP or any of its Subsidiaries (other than pursuant to blanket lien or after acquired property clauses existing in the applicable agreements (including any obligation to have new guarantors provide Liens on the same assets owned by it));
(i9) Liens on property or shares of stock of a Subsidiary another Person at the time such Subsidiary other Person becomes a Subsidiary Guarantorof such Person; provided provided, however, that such Liens are not created created, incurred or incurred assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary GuarantorSubsidiary; providedprovided further, furtherhowever, that such Liens may do not extend to any other property owned by the Borrower such Person or any of its Subsidiaries, except proceeds and products thereof and improvements thereon or pursuant to after acquired property clauses existing in the applicable agreements at the time such Person becomes a Subsidiary which do not extend to property transferred to such Person by Delphi LLP or a Restricted Subsidiary;
(j10) Liens on property at the time the Borrower such Person or a Subsidiary Guarantor acquired any of its Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into the Borrower such Person or any Subsidiary Guarantorof such Person; provided provided, however, that such Liens are not created created, incurred or incurred assumed in connection with, or in contemplation of, such acquisition; providedprovided further, furtherhowever, that the Liens may do not extend to any other property owned by the Borrower such Person or any Subsidiaryof its Subsidiaries other than proceeds or products thereof and accessions thereto;
(k11) Liens securing Indebtedness or other obligations of Delphi LLP or a Subsidiary owing to the Borrower Delphi LLP or another a Subsidiary permitted to be incurred in accordance with Section 6.01of Delphi LLP;
(112) Liens on specific items of inventory to secure any Refinancing (or other goods and proceeds successive Refinancings) as a whole, or in part, of any Loan Party Indebtedness secured by any Lien referred to in the foregoing clauses (7), (9) and (10); provided, however, that:
(A) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements, accessions, proceeds, dividends or distributions in respect thereof) and
(B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of:
(i) the outstanding principal amount or, if greater, committed amount of the indebtedness secured by Liens described under clauses (7), (9) or (10) at the time the original Lien became a Permitted Lien under the Indenture; and
(ii) an amount necessary to pay any fees and expenses, including premiums, related to such Refinancings;
(13) judgment Liens not giving rise to an Event of Default;
(14) Liens securing Indebtedness consisting of (A) the financing of insurance premiums with the providers of such Loan Party’s insurance or their affiliates and (B) take-or-pay obligations contained in supply arrangements in the ordinary course of business; and
(15) other Liens to secure Indebtedness as long as the amount of outstanding Indebtedness secured by Liens incurred pursuant to this clause (15), when aggregated with the amount of Attributable Debt outstanding and incurred in reliance on Section 5.02(e), does not exceed 15.0% of Consolidated Total Assets at the time any such Lien is granted; provided, however, notwithstanding whether this clause (15) would otherwise be available to secure Indebtedness, Liens securing Indebtedness originally secured pursuant to this clause (15) may secure Refinancing Indebtedness in respect of bankers’ acceptances issued or such Indebtedness and such Refinancing Indebtedness shall be deemed to have been secured pursuant to this clause (15).
(b) Any Lien created for the account benefit of the Holders of the Notes pursuant to Section 5.01(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
(c) For purposes of determining compliance with this Section 5.01, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens described in the definition of “Permitted Liens” but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens described in the definition of “Permitted Liens,” Delphi LLP shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such Loan Party Lien or such item of Indebtedness secured by such Lien in one of the clauses of the definition of “Permitted Liens” and such Lien securing such item of Indebtedness will be treated as being incurred or existing pursuant to facilitate the purchase, shipment or storage only one of such inventory or other goods;clauses.
Appears in 1 contract
Sources: Second Supplemental Indenture (Delphi Automotive PLC)
Limitation on Liens. Holdings and Neither the Borrower will notCompany nor IT shall, and the Borrower will not nor shall either permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(ai) Liens created to secure Indebtedness incurred under Section 6.01(b)(xxi);the Notes.
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(eii) Liens for taxes, assessments or other governmental charges or claims taxes not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company, IT or their respective Subsidiaries, as the case may be, in accordance conformity with GAAP;generally accepted accounting principles.
(fiii) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumsCarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanic's, materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business;business which are not overdue for a period of more than 30 days or which are bonded and being contested in good faith by appropriate proceedings.
(giv) minor survey exceptionsPledges or deposits in connection with workers' compensation, minor encumbrancesunemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements.
(v) Deposits to secure the performance of bids, easements or reservations oftrade contracts (other than for borrowed money), or rights leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of others fora like nature incurred in the ordinary course of business.
(vi) Easements, licenses, rightsright-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposes, or zoning or other restrictions as to encumbrances incurred in the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were are not incurred substantial in connection with Indebtedness amount and which do not in any case materially detract from the aggregate materially adversely affect the business value of the Borrower and its Subsidiaries, taken as a whole;property
(hvii) Liens existing on securing Debt of the Closing Date Company, IT and set forth on Schedule 1.01(c);their respective Subsidiaries permitted by paragraph 6C(iii) incurred to finance the acquisition of fixed or capital assets, provided that (A) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (B) such Liens do not at any time encumber any property other than (1) the property financed by such Debt and (2) pledges of cash or cash equivalents and (C) the principal amount of Debt secured by any such Lien shall at no time exceed 100% of the fair value (as determined in good faith by the board of directors of the Company, IT or such Subsidiaries) of the property acquired at the time it was acquired.
(iviii) Liens on the property or shares of stock assets of a corporation which becomes a Subsidiary of the Company or IT after the date hereof, securing Debt permitted by paragraph 6C(iv), provided that (A) such Liens existed at the time such Subsidiary becomes corporation became a Subsidiary Guarantor; provided that such Liens are and were not created or incurred in connection withanticipation thereof, or in contemplation of, (B) any such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend Lien is attached solely to any other property owned by such corporation as at the Borrower date it became a Subsidiary and is not spread to cover any property or assets of the Company, IT or any Subsidiary;other of their respective Subsidiaries, and (C) the amount of Debt secured thereby is not increased.
(jix) Liens on property at securing Debt of the time the Borrower or a Subsidiary Guarantor acquired the propertyCompany, including any acquisition IT and their respective Subsidiaries permitted by means paragraph 6C(v).
(x) Licenses of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any patents and other property technology owned by the Borrower Company, IT or any Subsidiary;of their respective Subsidiaries which is granted in the ordinary course of business by the Company or any of its Subsidiaries.
(kxi) Liens Pledges of cash or cash equivalents securing Indebtedness Debt of the Company or other obligations of a Subsidiary owing to the Borrower or another Subsidiary IT permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;by paragraph 6C(vi).
Appears in 1 contract
Sources: Note Agreement (Source Media Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in existence on the case date hereof and listed in Part B of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Schedule I hereto;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens ▇▇▇▇▇ imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days delinquent or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedingsproceedings if, if unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, landlord's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its businessbusiness that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings;
(e) Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 9(i) hereof;
(f) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(g) minor survey exceptionsdeposits or pledges to secure the performance of bids, minor encumbrancestrade contracts (other than for Indebtedness), easements or reservations ofleases, or rights statutory obligations, surety and appeal bonds, performance bonds and other obligations of others for, licensesa like nature incurred in the ordinary course of business;
(h) easements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries Company or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);; CREDIT AGREEMENT
(i) Liens upon tangible personal Property acquired after the date hereof (by purchase, construction or otherwise), or upon other property acquired after the date hereof as a Capital Expenditure, by the Company or any of its Subsidiaries, each of which Liens either (A) existed on property such Property before the time of its acquisition and was not created in anticipation thereof or shares (B) was created solely for the purpose of stock securing Indebtedness representing, or incurred to finance, refinance or refund, the cost of such Property; PROVIDED that (i) no such Lien shall extend to or cover any Property of the Company or such Subsidiary other than the Property so acquired, (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the fair market value (as determined in good faith by a Subsidiary Responsible Financial Officer of the Company) of such Property at the time such Subsidiary becomes a Subsidiary Guarantor; provided that it was acquired, and (iii) the principal amount of all Indebtedness (other than Indebtedness permitted by Section 8.07(d) hereof) secured by such Liens are shall not created or incurred exceed $1,000,000 in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiaryaggregate;
(j) Liens on property upon real Property heretofore leased or leased after the date hereof (under operating or capital leases) in the ordinary course of business by the Company or any of its Subsidiaries in favor of the lessor created at the time inception of the Borrower or a Subsidiary Guarantor acquired lease transaction, securing obligations of the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, of its Subsidiaries under or in contemplation of, respect of such acquisition; provided, further, that lease and extending to or covering only the Liens may not extend Property subject to any other property owned by the Borrower or any Subsidiarysuch lease and improvements thereon;
(k) Liens securing Indebtedness of sellers or other obligations creditors of a Subsidiary owing sellers of farm products encumbering such farm products when sold to any of the Obligors pursuant to the Borrower Food Security Act of 1985 or another Subsidiary permitted pursuant to similar state laws to the extent such Liens may be incurred in accordance with Section 6.01deemed to extend to the assets of such Obligors;
(1l) protective Uniform Commercial Code filings with respect to personal Property leased by any Obligor; and
(m) any extension, renewal or replacement of the foregoing, PROVIDED, however, that the Liens on specific items of inventory permitted hereunder shall not be spread to cover any additional Indebtedness or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Property. CREDIT AGREEMENT
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Consolidated Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics and materialmen, provided payment thereof is not at the time required by SECTION 5.3;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Consolidated Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect connection with the making of workers’ compensation lawsloans to customers, worker's compensation, unemployment insurance laws and other like laws, warehousemen's and attorneys' liens and statutory landlords' liens) and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rent, in each case like general nature incurred in the ordinary course of business;
business and not in connection with (di) Liens imposed by lawthe borrowing of money or (ii) obligations pursuant to ERISA, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;proceedings; Allied Capital Corporation Note Agreement
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company and its Consolidated 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 Company and its Subsidiaries Consolidated Subsidiaries;
(e) Liens securing Indebtedness of a Consolidated Subsidiary to the Company or to another Wholly-owned Consolidated Subsidiary;
(f) Liens existing as of March 31, 1999 and reflected on Annex B to Exhibit B hereto;
(g) Liens incurred after the ownership Closing Date given to secure the payment of their properties, in each case, which were not the purchase price or cost of construction incurred in connection with Indebtedness the acquisition of, or improvements to, fixed assets useful and which do not intended to be used in the aggregate materially adversely affect carrying on the business of the Borrower Company or a Consolidated Subsidiary, including Liens existing on such assets at the time of acquisition thereof or at the time of acquisition by the Company or a Consolidated Subsidiary of any business entity then owning such assets, whether or not such existing Liens were given to secure the payment of the purchase price of the assets to which they attach so long as they were not incurred, extended or renewed in contemplation of such acquisition, provided that (i) the Lien shall attach solely to the assets acquired or purchased, (ii) the Lien (other than Liens that are existing on such assets at the time of acquisition thereof and its Subsidiariesthat are permitted as aforesaid) shall have been created or incurred within 180 days of the date of acquisition of such fixed assets, taken except in the case of construction or acquisition of improvements to real estate, the land on which such improvements are located shall not be required to have been acquired within such 180 period; (iii) at the time of acquisition of such assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such assets whether or not assumed by the Company or a Consolidated Subsidiary shall not exceed an amount equal to 80% (or 100% in the case of Capitalized Leases) of the lesser of the total purchase price or fair market value at the time of acquisition of such assets (as a wholedetermined in good faith by the Board of Directors of the Company), and (iv) all Indebtedness secured by such Liens shall be permitted hereunder;
(h) Liens existing on Real Estate Assets securing Non-Recourse Indebtedness; provided that such Non-Recourse Indebtedness shall be permitted within the Closing Date and set forth on Schedule 1.01(c);limitations of SECTION 5.8; and
(i) Liens on property securing Indebtedness under Mortgage Repurchase Facilities or shares Interest Rate Swaps; provided that (i) the Lien of stock any such Mortgage Repurchase Facility shall extend only to the Commercial Mortgage Loans which are financed or refinanced under such Mortgage Repurchase Facility and the Related Collateral, (ii) the aggregate advances under such Mortgage Repurchase Facility shall not exceed 80% of the aggregate unpaid principal amount of the Commercial Mortgage Loans securing such Allied Capital Corporation Note Agreement Mortgage Repurchase Facility, (iii) the Lien securing any Interest Rate Swap shall extend only to Commercial Mortgage Loans and Related Collateral, and (iv) all such Indebtedness shall be permitted within the limitations of SECTION 5.8. The Company will not, and will not permit any Consolidated Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (upon the happening of a Subsidiary at contingency or otherwise) any Lien on or with respect to any property which secures Debt outstanding under the time such Subsidiary becomes a Subsidiary GuarantorBank Credit Agreement or the Existing Note Agreement, unless the Company makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured; provided that such Liens are not created security is granted pursuant to an agreement reasonably satisfactory to the Holders of 51% or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by more of the Borrower or any Subsidiary;
(j) Liens on property principal amount of the Notes at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;outstanding.
Appears in 1 contract
Sources: Note Agreement (Allied Capital Corp)
Limitation on Liens. Holdings and the Borrower The Public Hub Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) arising by statute in connection with worker's compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other similar charges and Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case nature of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or good faith cash deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, connection with tenders, contracts (or leases to which the Public Hub Company or any of its Restricted Subsidiaries is a party or other than for the payment of Indebtedness) or leases, or cash deposits required to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred be made in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, PROVIDED in each casecase that the obligation is not for borrowed money and that the obligation secured is not overdue or, for sums not yet overdue for a period of more than thirty (30) days or if overdue, is being contested in good faith by appropriate proceedings or which prevent enforcement of the matter under contest and adequate reserves have been established therefor;
(b) mechanics', workmen's, materialmen's, landlord's, carriers' and other similar Liens arising out in the ordinary course of judgments or awards business with respect to obligations which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedingsproceedings which prevent enforcement of the matter under contest;
(c) the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any legal proceeding, PROVIDED that the aggregate amount of liabilities of the Public Hub Company and its Restricted Subsidiaries secured by a pledge of assets permitted under this subsection, including interest and penalties thereon, if adequate reserves any, shall not be in excess of $1,000,000 at any one time outstanding or, if in excess of $1,000,000, is secured by assets (including cash) not at any time exceeding $1,000,000 in value;
(d) banker's Liens and similar Liens (including set-off rights) in respect of bank deposits;
(e) the retained interest of a lessor in connection with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPany lease;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not encumbrances incurred in connection with Indebtedness and the ordinary course of business which do not in materially detract from the aggregate materially adversely affect the business value of the Borrower property subject thereto;
(g) Liens existing as of the date of the Closing and its Subsidiaries, taken as a wholedescribed on SCHEDULE 5.15 hereto;
(h) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in carrying on the business of the Public Hub Company or a Restricted Subsidiary, including Liens existing on such property or assets at the Closing Date time of acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to secure the payment of the acquisition or purchase price or cost of construction, as the case may be, of the property or assets to which they attach; PROVIDED that
(i) the Lien shall attach solely to the property or assets acquired, purchased or constructed, (ii) such Lien shall have been created or incurred within six months of the date of acquisition or purchase or completion of construction, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Public Hub Company or a Restricted Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition or purchase (as determined in good faith by the Board of Directors of the Public Hub Company) or the cost of construction on the date of completion thereof, and set forth on Schedule 1.01(c);(iv) at the time of creation, issuance, assumption, guarantee or incurrence of any Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist; and
(i) Liens on property created or shares incurred after the date of stock the Closing given to secure Debt of a the Public Hub Company or any Restricted Subsidiary in addition to the Liens permitted by the preceding clauses (a) through (f) hereof; PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not Lien and after giving effect thereto and to the application of the proceeds thereof, (i) no Default or Event of Default would exist and (ii) Consolidated Priority Debt (including the Priority Debt then to be created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may incurred) would not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means exceed 15% of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Consolidated Net Worth.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower Infinity will not, and the Borrower will not permit any of the its Material Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on of its Property, or enter into any asset or property of HoldingsSale/Leaseback with respect to any such Property, the Borrower or any Subsidiary whether now owned or hereafter acquired; provided, exceptthat the foregoing restrictions shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any Governmental Authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in the books ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the applicable Loan Party extent, for an amount and for a period not resulting in accordance with GAAPan Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure surety, appeal or performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of money;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not encumbrances incurred in connection with Indebtedness the ordinary course of business and which do not in the aggregate materially adversely affect the business encumbrances consisting of the Borrower and its Subsidiarieszoning restrictions, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;easements,
Appears in 1 contract
Sources: 364 Day Credit Agreement (Infinity Broadcasting Corp /De/)
Limitation on Liens. Holdings and the Borrower will (a) The Company shall not, and the Borrower will shall not permit any Subsidiary of the Subsidiaries Company to, directly or indirectly, create, incur, assume create or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property or property assets (including Capital Stock or Debt of Holdings, the Borrower or any Subsidiary of the Company) now owned or hereafter acquiredacquired by it, exceptsecuring any Debt or other obligation other than the following Liens:
(a1) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)existing as of the Issue Date;
(b2) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedany Lien arising by reason of (i) any judgment, thatdecree or order of any court or arbitrator, in the case of Term Loan First Lien Collateralso long as such judgment, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges decree or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or order is being contested in good faith by and any appropriate legal proceedings or other Liens arising out of judgments or awards with respect to which may have been duly initiated for the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books review of such Loan Party in accordance with GAAP;
judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired, (eii) Liens for taxes, assessments or other governmental charges or claims taxes not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment delinquent or which are being contested in good faith, for which adequate reserves (as determined by the Company) have been established, (iii) security for payment of workers' compensation or other insurance, (iv) security for the performance of tenders, contracts (other than contracts for the payment of borrowed money) or leases in the ordinary course of business, (v) deposits to secure public or statutory obligations, or in lieu of surety or appeal bonds entered into in the ordinary course of business, (vi) operation of law in favor of carriers, warehousemen, landlords, mechanics, materialmen, laborers, employees, suppliers or similar Persons, incurred in the ordinary course of business for sums which are not delinquent for a period of more than 30 days or are being contested in good faith by negotiations or by appropriate proceedingsproceedings which suspend the collection thereof, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP(vii) security for surety, appeal, reclamation, performance or other similar bonds and (viii) security for Hedging Obligations;
(f3) Liens in favor to secure the payment of issuers all or a part of performance and surety bonds the purchase price of, or bid bonds or Capital Lease Obligations with respect to, assets (including Capital Stock) or property or business acquired or constructed after the Issue Date; provided, however, that (i) the Debt secured by such Liens shall have otherwise been permitted to be Issued under this Indenture and (ii) such Liens shall not encumber any other regulatory requirements assets or pledges or deposits securing payment property of insurance premiums, leases to which the Borrower Company or any of its Subsidiaries is a party and shall attach to such assets or other similar obligations property within 180 days of the completion of construction or letters acquisition of credit issued in the ordinary course of its businesssuch assets or property;
(g4) minor survey exceptionsLiens on the assets or property of a Subsidiary of the Company existing at the time such Subsidiary became a Subsidiary of the Company and not incurred as a result of (or in connection with or in anticipation of) such Subsidiary becoming a Subsidiary of the Company; provided, minor encumbranceshowever, easements that such Liens do not extend to or reservations ofcover any other property or assets of the Company or any of its Subsidiaries;
(5) Liens on any assets, including Collateral, of the Company or rights any Subsidiary of others forthe Company securing (i) obligations in respect of any Debt permitted by Section 4.03(b)(1) and (ii) obligations in respect of Debt, in an aggregate principal amount not to exceed $30 million at any time outstanding, permitted by Section 4.03(b)(12);
(6) leases and subleases of real property by the Company and its Subsidiaries (in any such case, as lessor) which do not interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries, and which are made on customary and usual terms applicable to similar properties;
(7) Liens securing Debt which is Issued to Refinance Debt which has been secured by a Lien permitted under this Indenture and is permitted to be Refinanced under this Indenture; provided, however, that such Liens do not extend to or cover any property or assets of the Company or any of its Subsidiaries not securing the Debt so Refinanced, other than as otherwise permitted by this Sections 4.04;
(8) easements, reservations, licenses, rights-of-way, sewerszoning restrictions and covenants, electric lines, telegraph conditions and telephone lines restrictions and other similar purposesencumbrances or title defects which, or zoning or other restrictions as to in the aggregate, do not materially detract from the use of real properties the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(9) Liens on assets of a Non-Recourse Subsidiary;
(10) Liens on assets located outside the United States and Canada to secure Debt Issued by Foreign Subsidiaries permitted by Sections 4.03(b) and 4.03(c);
(11) Liens in favor of the United States of America for amounts paid by the Company or any of its Subsidiaries as progress payments under government contracts entered into by them;
(12) other Liens incidental to the conduct of the business of the Borrower Company and its Subsidiaries or to the ownership of any of their properties, in each case, which were assets not incurred in connection with Indebtedness and Debt, which Liens do not in any case materially detract from the aggregate materially adversely affect value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower and Company or any of its Subsidiaries, taken as a whole;; and
(h13) Liens existing on granted in the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares ordinary course of stock business of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower Company or any Subsidiary;
(j) Liens on property at the time the Borrower of its Subsidiaries in favor of issuers of documentary or a Subsidiary Guarantor acquired the property, including any acquisition by means trade letters of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created credit for the account of the Company or such Loan Party to facilitate Subsidiary or bankers' acceptances, which Liens secure the purchase, shipment reimbursement obligations of the Company or storage such Subsidiary on account of such inventory letters of credit or bankers' acceptances; provided that each such Lien is limited to (i) the assets acquired or shipped with the support of such letter of credit or bankers' acceptances and (ii) any assets of the Company or such Subsidiary which are in the care, custody or control of such issuer in the ordinary course of business.
(b) Notwithstanding Section 4.04(a) above, the Company shall not, and shall not permit any Subsidiary of the Company to, create or suffer to exist any Lien upon any of the Collateral (including Collateral consisting of Capital Stock or Debt of any Subsidiary of the Company) now owned or hereafter acquired by it (i) securing any Public Debt unless the holders of such Public Debt share in the distribution of proceeds from the foreclosure on Collateral either (x) on an equal and ratable basis with the holders of the Primary First Lien Obligations (and any other obligations that share on an equal and ratable basis with the Primary First Lien Obligations) or (y) on an equal and ratable basis with the Holders of the Securities (and any other obligations that share on an equal and ratable basis with the Holders of the Securities) or (ii) securing any Debt or other goods;obligations (other than Public Debt) unless the holders thereof share in the distribution of proceeds from the foreclosure on Collateral on an equal or any greater basis with the Holders of the Securities or on any basis with the holders of the Primary First Lien Obligations or any other obligations that share in such proceeds. Liens permitted by Section 4.04(a) above and which comply with the requirements of this Section 4.04(b) are referred to collectively as "Permitted Liens."
Appears in 1 contract
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower will Company shall not, and the Borrower will shall not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by Liens referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 4.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (3) in Section 4.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 5% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Laboratory Corp of America Holdings)
Limitation on Liens. Holdings and So long as any Notes are outstanding, the Borrower will Company shall not, and the Borrower will shall not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any Principal Property or shares of stock or Indebtedness of any Restricted Subsidiary to secure any Indebtedness, without effectively providing that secures obligations under any the Notes shall (so long as such other Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptshall be so secured) be equally and ratably secured. The foregoing limitation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which that are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the books of the Restricted Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or of such Restricted Subsidiary;
(f) Liens in favor existence on the first date of issuers the issuance of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessNotes;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not in trade letters of credit issued for the aggregate materially adversely affect the business account of the Borrower Company or the account of a Restricted Subsidiary securing the reimbursement obligations in respect of such letters of credit, provided, that such Liens encumber only the property being acquired through payments made under such letters of credit or the documents of title and its Subsidiaries, taken as a wholeshipping and insurance documents relating to such property;
(h) Liens existing on intellectual property acquired by the Closing Date and set forth on Schedule 1.01(c)Company or a Restricted Subsidiary (such as software) securing the obligation of the Company or the obligation of such Restricted Subsidiary to make royalty or similar payments to the seller of such intellectual property, provided, that such Liens encumber only the intellectual property to which such payments relate;
(i) Liens on any Lien upon any property or shares of stock of a Subsidiary assets created at the time of the acquisition, purchase, lease, improvement or development of property or assets used or held by the Company or any Restricted Subsidiary or within one year after such Subsidiary becomes time to secure all or a Subsidiary Guarantor; provided that such Liens are not created portion of the purchase price or incurred in connection withlease for, or in contemplation the costs of improvement or development of, such other Person becoming property or assets;
(j) any Lien upon any property or assets existing thereon at the time of the acquisition thereof (provided such a Lien was not incurred in anticipation of such acquisition) by the Company or any Restricted Subsidiary Guarantor; provided(whether or not the obligations secured thereby are assumed by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any Restricted Subsidiary;
(l) Liens in respect of judgments that do not constitute an Event of Default;
(m) Liens to secure any extension, furtherrenewal, that refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by ▇▇▇▇▇ referred to in the foregoing clauses (f) through (l) or Liens created in connection with any amendment, consent or waiver relating to such Liens may Indebtedness, so long as such Lien does not extend to any other property owned and the Indebtedness so secured does not exceed the fair market value (as determined by the Borrower or any Subsidiary;
(jBoard of Directors) of the assets subject to such Liens on property at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the Borrower or case may be; or
(n) any Lien securing any Indebtedness in an amount which, together with, without duplication, (i) all other Indebtedness secured by a Lien that is not otherwise permitted by the foregoing provisions, (ii) the Attributable Debt of any Sale and Leaseback Transaction that is not otherwise permitted under clauses (a) through (d) in Section 5.02, and (iii) any Indebtedness incurred by a Subsidiary Guarantor acquired of the property, including any acquisition by means Company pursuant to clause (c) in Section 5.03 does not at the time of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that incurrence of the Liens may not extend to any other property owned by Indebtedness so secured exceed 5% of the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations Consolidated Total Assets of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 1 contract
Sources: Seventh Supplemental Indenture (Laboratory Corp of America Holdings)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incurIncur, assume affirm or suffer to exist any Lien that secures obligations under of any Indebtedness on kind upon any asset of its property or property assets (including any intercompany notes), owned at the date of Holdingsthis Supplemental Indenture or acquired after the date of this Supplemental Indenture, the Borrower or any Subsidiary now owned income or hereafter acquiredprofits therefrom, exceptexcept if the Notes (or a Guarantee, in the case of Liens of a Guarantor) are directly secured equally and ratably with (or prior to in the case of Liens with respect to Subordinated Indebtedness or Indebtedness of a Guarantor subordinated in right of payment to any Guarantee) the obligation or liability secured by such Lien, excluding, however, from the operation of the foregoing any of the following:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)any Lien existing as of the date of this Supplemental Indenture;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedany Lien arising by reason of (1) any judgment, thatdecree or order of any court, in the case of Term Loan First so long as such Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the benefit review of such judgment, decree or order shall not have been finally terminated or the Term Loan Secured Parties period within which such proceedings may be initiated shall not have expired; (as defined in the Intercreditor Agreement);
(c2) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment delinquent or which are being contested in good faith; (3) security for payment of workers' compensation or other insurance; (4) good faith by appropriate proceedingsdeposits in connection with tenders, if adequate reserves with respect thereto are maintained leases or contracts (other than contracts for the payment of money); (5) zoning restrictions, easements, licenses, reservations, provisions, covenants, conditions, waivers, restrictions on the books use of the applicable Loan Party in accordance with GAAP;
property or minor irregularities of title (f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to leasehold interests, mortgages, obligations, liens and other regulatory requirements encumbrances incurred, created, assumed or pledges permitted to exist and arising by, through or deposits securing payment under a landlord or owner of insurance premiumsthe leased property, leases with or without consent of the lessee), none of which materially impairs the use of any parcel of property material to which the Borrower operation of the business of the Company or any Restricted Subsidiary or the value of its Subsidiaries is a party such property for the purpose of such business; (6) deposits to secure public or other similar obligations statutory obligations, or letters in lieu of credit issued in the ordinary course of its business;
surety or appeal bonds; (g7) minor survey certain surveys, exceptions, minor title defects, encumbrances, easements or easements, reservations of, or rights of others for, licenses, rights-of-rights of way, sewers, electric lines, telegraph and or telephone lines and other similar purposes, purposes or zoning or other restrictions as to the use of real properties or Liens incidental to property not interfering with the ordinary conduct of the business of the Borrower and Company or any of its Subsidiaries Restricted Subsidiaries; (8) operation of law in favor of mechanics, materialmen, laborers, employees or to the ownership of their propertiessuppliers, in each case, which were not incurred in connection the ordinary course of business for sums which are not yet delinquent or are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof; or (9) standard custodial, bailee or depository arrangements (including (x) in respect of deposit accounts with Indebtedness banks and which do not other financial institutions and (y) standard customer agreements in respect of accounts for the aggregate materially adversely affect the business purchase and sale of the Borrower securities and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(cother property with brokerage firms or other types of financial institutions);
(ic) Liens any Lien now or hereafter existing on property of the Company or shares of stock of a Subsidiary at any Guarantor securing Indebtedness outstanding under the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are Credit Agreement;
(d) any Lien securing Acquired Indebtedness created prior to (and not created or incurred in connection with, or in contemplation of, ) the incurrence of such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned Indebtedness by the Borrower Company or any Restricted Subsidiary;
(j) Liens on property at , in each case which Indebtedness is permitted under the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means provisions of a merger or consolidation with or into the Borrower or any Subsidiary GuarantorSection 3.4; provided that any such Liens are not created Lien only extends to the assets that were subject to such lien securing such Acquired Indebtedness prior to the related transaction by the Company or incurred its Restricted Subsidiaries; and
(e) any extension, renewal, refinancing or replacement, in connection with, whole or in contemplation ofpart, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations Lien described in respect the foregoing clauses (a) through (d) so long as the amount of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;security is not increased thereby.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will shall not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Lien that secures obligations under any Indebtedness on any asset property or property assets (including Equity Interests of Holdings, the Borrower or any Subsidiary Affiliates held by Borrower) now owned or hereafter acquiredacquired by it or on any income or rights in respect of any thereof, except:
(a) Liens created pursuant to secure Indebtedness incurred or arising under Section 6.01(b)(xxi)any Loan Document;
(b) Liens imposed by law for taxes, assessments or governmental charges not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted if, unless the amount is not material with respect to secure Indebtedness incurred under Section 6.01(b)(i); providedit or its financial condition, that, adequate reserves with respect thereto are maintained in accordance with GAAP on the case of Term Loan First Lien Collateral, the Liens books of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)applicable Person;
(c) pledges Carriers', warehousemen's, mechanics', materialmen's, repairmen's and other similar Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith and by appropriate proceedings diligently conducted;
(d) Pledges and deposits and other Liens (i) made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations, and (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of workers’ compensation lawsletters of credit or bank guarantees for the benefit of) insurance carriers providing property, unemployment casualty or liability insurance laws or similar legislation, or good faith deposits to Borrower;
(e) Liens (including deposits) to secure the performance of bids, tenders, contracts (other than for the payment of Indebtedness) or trade contracts, leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or and appeal bonds, or deposits as security for contested taxes or import duties or for the payment performance bonds and other obligations of rentlike nature, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumsEasements, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseszoning restrictions, rights-of-way, sewers, electric lines, telegraph minor defects or irregularities in title and telephone lines and other similar purposes, encumbrances on real property imposed by law or zoning or other restrictions as to arising in the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were are not incurred material in connection with Indebtedness amount and which do not in materially detract from the aggregate value of the affected property or interfere materially adversely affect with the ordinary conduct of business of Borrower;
(g) Liens in existence as of the Borrower Closing Date and its Subsidiariesany renewals, taken as a whole;modifications, replacements and extensions of such Liens; and
(h) Liens Any Lien existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on any property or shares of stock of a Subsidiary at asset prior to the time such Subsidiary becomes a Subsidiary Guarantoracquisition thereof by Borrower; provided that such Liens are Lien is not created in contemplation of, or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Borrower.
Appears in 1 contract
Sources: Loan Agreement (Nl Industries Inc)
Limitation on Liens. Holdings and the Borrower The Reporting Entity will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property or property of Holdingsassets (other than Unrestricted Margin Stock), the Borrower or any Subsidiary whether now owned or hereafter acquired, except; provided that this Section shall not apply to the following:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)for taxes not yet due or that are being actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP;
(b) other statutory, common law or contractual Liens incidental to secure Indebtedness the conduct of its business or the ownership of its property and assets that (A) were not incurred under Section 6.01(b)(i); providedin connection with the borrowing of money or the obtaining of advances or credit, that, and (B) do not in the case aggregate materially detract from the value of Term Loan First Lien Collateral, its property or assets or materially impair the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined use thereof in the Intercreditor Agreement)operation of its business;
(c) pledges or deposits in respect the ordinary course of business in connection with workers’ compensation lawscompensation, unemployment insurance laws or similar and other social security legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtednessany Lien imposed by ERISA;
(d) or leases, pledges or deposits to secure public the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or statutory litigation), performance bonds and other obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case a like nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments on property or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject assets to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books secure obligations owing to any member of the applicable Loan Party in accordance with GAAPConsolidated Group;
(f) (A) purchase money Liens on fixed or capital assets or for the deferred purchase price of property, provided that such Lien is limited to the purchase price and only attaches to the property being acquired, constructed or improved and, for the avoidance of doubt, proceeds thereof; provided further that purchase money Liens in favor of issuers of performance and surety bonds or bid bonds or any lender may be cross-collateralized with respect to other regulatory requirements obligations of such type owing to such lender and (B) Capital Leases; or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessfinance leases;
(g) minor survey exceptionseasements, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning restrictions or other restrictions as to minor defects or irregularities in title of real property not interfering in any material respect with the use of real properties or Liens incidental to the conduct of such property in the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business any member of the Borrower and its Subsidiaries, taken as a wholeConsolidated Group;;
(h) Liens existing on the date of the Initial Closing andAmendment Effective Date and and, to the extent securing obligations in excess of $25,000,000, set forth on Schedule 1.01(c)5.15;
(i) Liens on property or shares of stock Receivables Related Assets of a Receivables Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, with the sale of such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend Receivables Related Assets pursuant to any other property owned by the Borrower or any SubsidiarySection 10.5(c) hereof;
(j) in addition to the Liens on property permitted herein, additional Liens securing Debt or other obligations; provided that, the aggregate principal amount of Priority Debt at the time the Borrower such Debt or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not other obligation is created or incurred in connection with, or in contemplation of, such acquisitionshall not exceed an amount equal to 10% of the Consolidated Total Assets; provided, provided further, that notwithstanding the Liens may foregoing and without limiting Section 9.8, the Reporting Entity shall not, and shall not extend permit any of its Restricted Subsidiaries to, secure pursuant to this Section 10.3(j) any Debt outstanding under or pursuant to any other property owned by Material Credit Facility unless and until the Borrower or Notes (and any guaranty delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Required Holders in substance and in form, including, without limitation, an intercreditor agreement and opinions of counsel to the Reporting Entity and/or any such Restricted Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Required Holders (provided that an opinion from a nationally recognized law firm and/or in-house counsel of the Company shall be reasonably satisfactory to the Required Holders);
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01Permitted Encumbrances;
(1l) any Lien existing on any property or asset prior to the acquisition thereof by any member of the Consolidated Group or existing on any property or assets of any Person at the time such Person becomes a Restricted Subsidiary after the date of the Initial Closing; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary, as the case may be, and (ii) such Lien does not apply to any other property or assets of any member of the Consolidated Group (other than Persons who become members of the Consolidated Group in connection with such acquisition);
(m) Liens arising in connection with any margin posted related to Hedge Agreements entered other than for speculative purposes;
(n) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in Sections 10.3(f), 10.3(h), 10.3(j) and 10.3(l); provided that (x) the principal amount of the obligations secured thereby shall be limited to the principal amount of the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof) and (y) such Lien shall be limited to all or a part of the assets that secured the obligation so extended, renewed or replaced and (z) in the case of any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (j), such extension, renewal or replacement (or successive renewals or replacements) shall utilize basket capacity under clause (j) prior to any excess amount not permitted thereunder being permitted under this clause (n); and
(o) Liens on specific items the products and proceeds (including, without limitation, insurance condemnation and eminent domain proceeds) of inventory and accessions to, and contract or other goods rights (including rights under insurance policies and product warranties) derivative of or relating to, property subject to Liens under any of the paragraphs of this Section 10.3; and
(p) Liens on the proceeds of any Loan Party securing such Loan Party’s obligations Specified Indebtedness deposited with a trustee or paying agent or otherwise segregated or held in trust or under an escrow or other funding arrangement with respect of bankers’ acceptances issued or created for to a Pending Transaction prior to the account consummation of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Pending Transaction.
Appears in 1 contract
Sources: Note Purchase Agreement (STERIS PLC)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the its Restricted Subsidiaries to, directly or indirectly, create, to incur, assume or suffer to exist exist, any Lien that secures obligations under any Indebtedness on any asset upon its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:securing any Indebtedness of any Person, unless the Notes are equally and ratably secured by such Liens, other than the following (Permitted Liens):
(a) Liens for taxes, assessments or governmental charges or claims or fines not yet due or which are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Company or such Restricted Subsidiary, as the case may be, to secure Indebtedness incurred under Section 6.01(b)(xxi)the extent required by Argentine GAAP;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created by any Restricted Subsidiaries over their assets solely in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Company or another Restricted Subsidiary;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure the performance of bids, tenderstrade contracts, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or and appeal bonds, or deposits as security for contested taxes or import duties or for the payment performance bonds and other obligations of rent, in each case a like nature incurred in the ordinary course of business;
(d) Liens imposed arising by lawreason of (1) any judgment, decree or order of any court, so long as such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or Lien is being contested in good faith by and any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; (2) any embargo preventivo or any other interlocutory or temporary attachment order or measure in connection with an action or proceeding during the pendency of such action or proceeding; (3) security for payment of workers’ compensation or other Liens insurance or obligations arising out from other social security laws; and (4) operation of judgments law in favor of warehousemen, landlords, mechanics, material men, laborers, employees or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal suppliers or other proceedings similar liens imposed by law or by contract incurred in the ordinary course of business for review, if adequate reserves with respect thereto sums which are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days delinquent or payable or subject to penalties for nonpayment or which are being contested in good faith by negotiations or by appropriate proceedingsproceedings which suspend the collection thereof, if and, in each case, for which adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance Company or such Restricted Subsidiary, as the case may be, to the extent required by Argentine GAAP;
(e) leases or subleases granted to others, easements, rights of way, zoning and similar covenants and restrictions and other similar encumbrances or title defects, which do not materially detract from the value of the property subject thereto or materially interfere with GAAPthe ordinary conduct of the business of the Company and its Restricted Subsidiaries;
(f) Liens in favor on property that secure Indebtedness Incurred for the purpose of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower financing all or any part of its Subsidiaries is a party the purchase price or cost of construction or improvement of such property and which attach no later than 90 days after the date of such purchase or the completion of construction or improvement; provided that no such Lien shall extend to or cover any physical assets or equipment other similar obligations than the physical assets or letters of credit issued in the ordinary course of its businessequipment being acquired, constructed or improved;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower Company or a Subsidiary Guarantor acquired the any of its Restricted Subsidiaries acquires such property, including any acquisition by means of a merger or consolidation of such Person with or into the Borrower Company or any Subsidiary Guarantora Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, of such acquisition; provided, further, that the Liens may acquisition and do not extend to any other property owned of the Company or any Restricted Subsidiary existing immediately prior to such acquisition;
(h) escrow deposits, trusts or similar accounts created or established pursuant to the Restructuring Indenture, this Indenture or for the payment of debt service obligations under the Notes, including without limitation, any deposits or accounts created and any encumbrances or interests granted in such deposits or accounts, in each case, in connection with or in furtherance of the application of the proceeds of this offering as described under “Use of Proceeds” in the Offering Memorandum;
(i) any banker’s right of set-off arising from operation of law with respect to deposits made in the ordinary course of business by the Borrower or any SubsidiaryCompany;
(j) Liens securing obligations under Hedging Contracts;
(k) Liens securing Indebtedness in existence on the Issuance Date and any renewals or extensions thereof, so long as (A) such renewal or extension Lien does not extend to any property other obligations of a Subsidiary owing than that originally subject to the Borrower Liens being renewed or another Subsidiary permitted to be incurred in accordance with Section 6.01extended and (B) the principal amount of the Indebtedness secured by such Lien, if applicable, is not increased;
(1l) Liens to secure any Permitted Refinancing Indebtedness which is Incurred to refinance any Indebtedness which has been secured by a Lien permitted under this Section 9.1; provided that such new Liens are not materially more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being refinanced, and do not extend to any property or assets other than property or assets securing the Indebtedness refinanced by such Permitted Refinancing Indebtedness;
(m) Liens on specific items Receivables and Related Assets securing Permitted Indebtedness described in Section 9.2(h);
(n) Liens arising or deemed to arise from a Sale and Leaseback Transaction;
(o) Liens created or established in order to comply with any applicable rule, regulation, order, resolution, decree, directive or instruction of inventory any federal, provincial or other goods municipal government of Argentina, or any agency or instrumentality thereof, in connection with the conduct of a Permitted Business; and
(p) Liens on any debt securities of the Company or a Restricted Subsidiary repurchased by the Company and securing Indebtedness the proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created which are used exclusively for the account repurchase of such Loan Party other debt securities of the Company or a Restricted Subsidiary; provided that, notwithstanding the foregoing, any Lien, of any nature or source, on the concession granted pursuant to facilitate the purchase, shipment or storage of such inventory or other goods;Concession Agreement shall not be considered a Permitted Lien.
Appears in 1 contract
Sources: Indenture (Edenor)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or its Subsidiaries, as the case may be, in accordance conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges, deposits or similar liens in connection with workers’ compensation, unemployment insurance and other social security legislation or regulation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) (A) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases or subleases, statutory obligations, utilities, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business and (B) deposits and Liens on financial assets in each case to secure swaps or other derivatives or other funding management transactions, entered into by the Company or any of its Subsidiaries to hedge against risks or for funding management purposes, in each case arising in the ordinary course of business and on commercially reasonable terms negotiated on an arms-length basis in connection with transactions not prohibited under this Agreement (and not entered into for speculative purposes);
(e) easements, rights-of-way, restrictions and other similar encumbrances which, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries taken as a whole;
(f) Liens in favor existence on the date hereof listed on Schedule 6.2(f), provided that no such Lien is spread to cover any additional property after the Third Restatement Effective Date and that the amount of issuers Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of performance the Company and surety bonds its Subsidiaries incurred to finance the acquisition of fixed or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower capital assets (or any refinancing thereof that does not increase the amount of its Subsidiaries is a party such Indebtedness outstanding at the time of such refinancing plus fees and expenses incurred in connection with such refinancing), provided that (i) such Liens shall be created at or not later than 180 days after the acquisition of such fixed or capital assets and (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness;
(h) bankers’ liens or other similar obligations or letters liens of credit issued financial institutions, in each case arising by operation of law in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on the property or shares of stock assets of a Person which becomes a Subsidiary on or after the date hereof securing Indebtedness of such Person or liens on any property or assets acquired after the Third Restatement Effective Date, provided that (i) such Liens existed at the time such Subsidiary becomes Person became a Subsidiary Guarantor; provided that or at the time of such Liens are acquisition, as the case may be (the “relevant time”), and were not created in anticipation thereof and (ii) any such Lien is not spread to cover any additional property or incurred in connection withassets after the relevant time, other than proceeds of such property or in contemplation of, assets to the extent such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned proceeds were covered by the Borrower or any Subsidiarygrant of security in existence at the relevant time and such grant was not created in anticipation thereof;
(jA) Liens on property at the time the Borrower arising out of judgments or awards (x) which are stayed or bonded pending appeal or (y) with respect to which an appeal or a Subsidiary Guarantor acquired proceeding for review is being prosecuted in good faith and adequate reserves have been provided for the propertypayment of such judgment or award and (B) Liens constituting escrow deposits or similar deposit arrangements (including, including without limitation, a “Qualified Settlement Fund” within the meaning of Treasury Regulation §1.468B-1 and any acquisition by means analogous local, state, and/or foreign statute, law, regulation, or rule) with respect to the payment of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided settlements that such Liens are not created yet final or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend remain subject to any other property owned by the Borrower or any Subsidiaryappeal;
(k) Liens securing Indebtedness or other obligations in favor of a the Company which secure the obligation of any Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01Company;
(1l) Liens attaching to deposits in connection with any letter of intent, purchase agreement or similar agreement in connection with acquisitions;
(m) any interest or title of a lessor or lessee under any lease entered in the ordinary course of business and covering only the assets so leased, to the extent that the same would constitute a Lien;
(n) Liens (not otherwise permitted hereunder) which secure obligations not exceeding (as to the Company and all Subsidiaries) in aggregate an amount equal to the greater of: (x) $600,000,000 and (y) 4.0% of consolidated total assets of the Company and its Subsidiaries as of the end of the fiscal quarter for which financial statements have been delivered pursuant to Section 5.1 most recently prior to the time the latest such Lien is incurred. For purposes of determining compliance with this Section 6.2, the amount of obligations secured by Liens denominated in any currency other than Dollars shall be calculated based on specific items of inventory or other goods and proceeds of any Loan Party securing customary currency exchange rates in effect on the latest date that obligations secured by such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Liens were incurred.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Limitation on Liens. Holdings and the No Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in existence on the case Effective Date and listed in Part B of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Schedule I hereto;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by lawany governmental authority for taxes, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums assessments or charges not yet overdue for a period of more than thirty (30) days due or that are being contested in good faith and by appropriate proceedings or other Liens arising out of judgments or awards if, unless the amount thereof is not material with respect to which the applicable Loan Party shall then be proceeding with an appeal it or other proceedings for reviewits financial condition, if adequate reserves with respect thereto are maintained on the books of such Loan Party Borrower or such Borrower's Subsidiaries, as the case may be, in accordance with GAAP;
(ed) Liens for taxescarriers', assessments warehousemen's, mechanics', materialmen's, repairmen's, builder's or other governmental charges or claims like Liens arising in the ordinary course of business that are not yet overdue for a period of more than thirty (30) 45 days or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on and Liens securing judgments (but only to the books extent for an amount and for a period not resulting in an Event of the applicable Loan Party in accordance with GAAPDefault under Section 9.01(h) hereof);
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) Liens in favor deposits to secure the performance of issuers bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued like nature incurred in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the such Borrower and its Subsidiaries or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its such Borrower's Subsidiaries, taken as a whole;
(h) Liens existing (provided such Liens consist only of floating charges on real property and security interests in personal property) on Property of any corporation that becomes a Subsidiary of Canadian Forest after the Closing Date date hereof, PROVIDED that such Liens are in existence at the time such corporation becomes a Subsidiary of Canadian Forest and set forth on Schedule 1.01(cwere not created in anticipation thereof;
(i) Liens securing obligations of a Subsidiary of Canadian Forest to a Borrower, and obligations of a Borrower to another Borrower;
(j) Liens for farm-in, farm-out, joint operating, area of mutual interest agreements or similar agreements entered into by a Borrower in the ordinary course of business which a Borrower determines in good faith to be necessary for or advantageous to the economic development of its Properties; PROVIDED any farm-out agreements covering any Property other than Unrestricted Property shall require the prior written consent of the Lender (with the consent of Majority Lenders);
(i) Liens on property Property of the Borrowers that are pari passu or shares subordinated to the Liens created pursuant to this Agreement (other than receivables) created pursuant to any Commodity Hedging Agreement or Interest Rate Protection Agreement or Currency hedge agreement permitted pursuant to Section 8.08(e) with any lender under the Funding Credit Agreement or any affiliate of stock of such lender or (ii) Liens on cash or cash equivalents (other than receivables) created pursuant to any Commodity Hedging Agreement or Interest Rate Protection Agreement or Currency hedge agreement permitted pursuant to Section 8.08(e) hereof with any Person (other than a Subsidiary at lender under the time such Subsidiary becomes a Subsidiary Guarantor; Funding Credit Agreement) provided that the aggregate amount of cash or cash equivalents secured by such Liens are shall not created exceed C$2,000,000 (or incurred its equivalent in connection with, or other currencies) in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to the aggregate at any other property owned by the Borrower or any Subsidiaryone time;
(jl) Liens on property at the time accounts receivable of ProMark (including accounts receivable held by Canadian Forest in trust for ProMark pursuant to the Borrower Sale Agreement) to secure ProMark's obligations under the BOM Agreement;
(m) any extension, renewal or a Subsidiary Guarantor acquired replacement of the propertyforegoing, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, PROVIDED that the Liens may permitted hereunder would not extend nor shall be amended to cover any additional Indebtedness or Property (other property owned by the Borrower or any Subsidiary;than a substitution of like Property); and
(kn) additional Liens securing upon Property created after the Effective Date, PROVIDED that the aggregate Indebtedness secured thereby and incurred on and after the Effective Date shall not exceed C$1,000,000 (or its equivalent in other obligations of a Subsidiary owing to currencies) in the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of aggregate at any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;one time outstanding.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Borrowers will not, and the Borrower will not permit ------------------- any of the their respective Subsidiaries to, directly or indirectly, create, incur, assume assume, or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of their respective revenues, property (including fixed assets, inventory, Real Property, intangible rights and Capital Stock) or property of Holdingsother assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:other than the following ("Permitted Liens"): ---------------
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims levies to the extent that payment thereof shall not yet at the time be required to be made in accordance with the provisions of Section 7.09; ------------
(b) Liens encumbering property of any Bastet/Mission Entity consisting of carriers, warehousemen, mechanics, materialmen, repairmen and landlords and other Liens arising by operation of law and incurred in the ordinary course of business for sums which are not overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, proceedings and (if adequate so contested) for which appropriate reserves with respect thereto are have been established and maintained on the books of the applicable Loan Party such Bastet/Mission Entity in accordance with GAAP;
(fc) Liens in favor encumbering property of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued Bastet/Mission Entity incurred in the ordinary course of its businessbusiness (i) in connection with workers' compensation, unemployment insurance, or other forms of governmental insurance or benefits, or to secure performance of bids, tenders, statutory obligations, leases, and contracts (other than for Indebtedness) entered into in the ordinary course of business of such Bastet/Mission Entity or (ii) to secure obligations on surety, performance or appeal bonds so long as the obligations secured by Liens under this clause (ii) do not exceed $500,000 in the aggregate at any time outstanding;
(gd) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewersreservations, electric linespermits, telegraph servitudes, zoning and telephone lines similar restrictions and other similar purposesencumbrances or title defects (i) described in the Mortgage Policies or (ii) which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or zoning or other restrictions as to interfere with the use of real properties or Liens incidental to the ordinary conduct of the business of any Bastet/Mission Entity;
(e) judgment Liens securing amounts not in excess of (i) $250,000 and (x) in existence less than 30 days after the Borrower and its Subsidiaries entry thereof, (y) with respect to which execution has been stayed or (z) with respect to which the ownership of their properties, appropriate insurance carrier has agreed in each case, which were not incurred in connection with Indebtedness and which do not writing that there is coverage by insurance or (ii) $250,000 in the aggregate materially adversely affect at any time outstanding;
(f) purchase money security interests encumbering, or Liens otherwise encumbering at the time of the acquisition thereof by the Borrowers or any of their respective Subsidiaries, (i) Real Property, provided that such security interests and Liens do not secure amounts in -------- excess of $1,500,000 in the aggregate at any time outstanding for the Borrowers and their respective Subsidiaries and (ii) equipment, furniture, machinery or other assets hereafter acquired by the Borrowers or any of their respective Subsidiaries for normal business purposes, and refinancings, renewals and extensions of such security interests and Liens, provided that such security interests and Liens do not secure amounts in -------- excess of $1,500,000 in the aggregate at any time outstanding for the Borrower and its Subsidiaries;
(g) interests in Leaseholds under which a Bastet/Mission Entity is a lessor, taken as a wholeprovided such Leaseholds are otherwise not prohibited by the -------- terms of this Agreement;
(h) bankers' Liens existing on the Closing Date and set forth on Schedule 1.01(c)in respect of deposit accounts;
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any SubsidiarySecurity Documents;
(j) Liens on property other Liens, so long as the obligations secured thereby do not exceed $250,000 in the aggregate at the any time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiaryoutstanding;
(k) the options to purchase assets of the Bastet/Mission Entities granted by such Bastet/Mission Entities to the Ultimate Nexstar Parent or one or more of its Subsidiaries; and
(l) Liens represented by the escrow of cash or Cash Equivalents, and the earnings thereon, securing Indebtedness or other the obligations of a Subsidiary owing Bastet/Mission Entity under any agreement to the Borrower acquire, or another Subsidiary permitted pursuant to be incurred which it acquired, Reinvestment Assets in accordance with Section 6.01;
(1) Liens on specific items of inventory this Agreement or other goods and proceeds assets which it is permitted to acquire pursuant to Section 8.04 or securing the ------------ obligations of a Bastet/Mission Entity to the seller of the property under any Loan Party securing agreement pursuant to which such Loan Party’s obligations Bastet/Mission Entity may acquire Reinvestment Assets in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory accordance with this Agreement or other goods;assets which the Bastet/Mission Entities are permitted to acquire pursuant to Section ------- 8.04. ----
Appears in 1 contract
Sources: Credit Agreement (Nexstar Broadcasting of the Wichita Falls LLC)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incurIncur, assume affirm or suffer to exist any Lien that secures obligations under of any Indebtedness on kind upon any asset of its property or property assets (including any intercompany notes), owned at the date of Holdingsthis Supplemental Indenture or acquired after the date of this Supplemental Indenture, the Borrower or any Subsidiary now owned income or hereafter acquiredprofits therefrom, exceptexcept if the Notes (or a Guarantee, in the case of Liens of a Guarantor) are directly secured equally and ratably with (or prior to in the case of Liens with respect to Subordinated Indebtedness or Indebtedness of a Guarantor subordinated in right of payment to any Guarantee) the obligation or liability secured by such Lien, excluding, however, from the operation of the foregoing any of the following:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)any Lien existing as of the date of this Supplemental Indenture;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedany Lien arising by reason of (1) any judgment, thatdecree or order of any court, in the case of Term Loan First so long as such Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the benefit review of such judgment, decree or order shall not have been finally terminated or the Term Loan Secured Parties period within which such proceedings may be initiated shall not have expired; (as defined in the Intercreditor Agreement);
(c2) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment delinquent or which are being contested in good faith; (3) security for payment of workers' compensation or other insurance; (4) good faith by appropriate proceedingsdeposits in connection with tenders, if adequate reserves with respect thereto are maintained leases or contracts (other than contracts for the payment of money); (5) zoning restrictions, easements, li- censes, reservations, provisions, covenants, conditions, waivers, restrictions on the books use of the applicable Loan Party in accordance with GAAP;
property or minor irregularities of title (f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to leasehold interests, mortgages, obligations, liens and other regulatory requirements encumbrances incurred, created, assumed or pledges permitted to exist and arising by, through or deposits securing payment under a landlord or owner of insurance premiumsthe leased property, leases with or without consent of the lessee), none of which materially impairs the use of any parcel of property material to which the Borrower operation of the business of the Company or any Restricted Subsidiary or the value of its Subsidiaries is a party such property for the purpose of such business; (6) deposits to secure public or other similar obligations statutory obligations, or letters in lieu of credit issued in the ordinary course of its business;
surety or appeal bonds; (g7) minor survey certain surveys, exceptions, minor title defects, encumbrances, easements or easements, reservations of, or rights of others for, licenses, rights-of-rights of way, sewers, electric lines, telegraph and or telephone lines and other similar purposes, purposes or zoning or other restrictions as to the use of real properties or Liens incidental to property not interfering with the ordinary conduct of the business of the Borrower and Company or any of its Subsidiaries Restricted Subsidiaries; (8) operation of law in favor of mechanics, materialmen, laborers, employees or to the ownership of their propertiessuppliers, in each case, which were not incurred in connection the ordinary course of business for sums which are not yet delinquent or are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof; or (9) standard custodial, bailee or depository arrangements (including (x) in respect of deposit accounts with Indebtedness banks and which do not other financial institutions and (y) standard customer agreements in respect of accounts for the aggregate materially adversely affect the business purchase and sale of the Borrower securities and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(cother property with brokerage firms or other types of financial institutions);
(ic) Liens any Lien now or hereafter existing on property of the Company or shares any Guarantor securing Senior Indebtedness or Senior Guarantor Indebtedness, in each case which Indebtedness is permitted under the provisions of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; Section 3.4 and provided that such Liens the provisions of Section 3.10 are complied with;
(d) any Lien securing Acquired Indebtedness created prior to (and not created or incurred in connection with, or in contemplation of, ) the incurrence of such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned Indebtedness by the Borrower Company or any Restricted Subsidiary;
(j) Liens on property at , in each case which Indebtedness is permitted under the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means provisions of a merger or consolidation with or into the Borrower or any Subsidiary GuarantorSection 3.4; provided that any such Liens are not created Lien only extends to the assets that were subject to such lien securing such Acquired Indebtedness prior to the related transaction by the Company or incurred its Restricted Subsidiaries; and
(e) any extension, renewal, refinancing or replacement, in connection with, whole or in contemplation ofpart, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations Lien described in respect the foregoing clauses (a) through (d) so long as the amount of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;security is not increased thereby.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under mortgage, pledge, security interest, encumbrance, lien or charge of any Indebtedness kind on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(ai) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)liens for property taxes and assessments or governmental charges or levies, provided that payment thereof is not at the time required by SECTION 5.3 and (ii) liens securing claims or demands of mechanics and materialmen;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case liens of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) liens, charges, encumbrances and priority claims incidental to the conduct of business or the ownership of properties and assets (including warehousemen's and attorneys' liens and statutory landlords' liens) and deposits, pledges or deposits in respect liens to secure the performance of workers’ compensation lawsbids, unemployment insurance laws tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other liens of rent, in each case like general nature incurred in the ordinary course of business;
(d) Liens imposed by lawbusiness and not in connection with the borrowing of money, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, provided in each case, for sums the obligation secured, if material, is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(ed) Liens for taxes, assessments survey exceptions or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company 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 Company and its Subsidiaries Subsidiaries;
(e) mortgages, liens or security interests securing Indebtedness of a Subsidiary to the Company or to another Subsidiary;
(f) mortgages, conditional sale contracts, security interests or other arrangements for the ownership retention of their propertiestitle (including Capitalized Leases) existing as of February 28, 1998, securing Current Debt or Funded Debt of the Company or any Subsidiary outstanding on such date and reflected in each caseSchedule II hereto;
(g) mortgages, which were not conditional sale contracts, security interests or other arrangements for the retention of title (including Capitalized Leases) incurred after the Closing Date given to secure the payment of the purchase price incurred in connection with Indebtedness the acquisition of fixed assets useful and which do not intended to be used in the aggregate materially adversely affect carrying on the business of the Borrower Company or a Subsidiary, including liens existing on such fixed assets at the time of acquisition thereof or at the time of acquisition by the Company or a Subsidiary of any business entity then owning such fixed assets, whether or not such existing liens were given to secure the payment of the purchase price of the fixed assets to which they attach, provided that (i) the lien or charge shall attach solely to the property acquired or purchased, (ii) at the time of acquisition of such fixed assets, the aggregate amount remaining unpaid on all Indebtedness secured by liens on such fixed assets whether or not assumed by the Company or a Subsidiary shall not exceed an amount equal to 75% (or 100% in the case of Capitalized Leases) of the lesser of the total purchase price or fair market value at the time of acquisition of such fixed assets (as determined in good faith by the Board of Directors of the Company) and its Subsidiaries(iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, taken as a wholeno Default or Event of Default would exist under SECTION 5.8;
(h) Liens existing on mortgages, conditional sale contracts, security interests or other arrangements for the Closing Date retention of title (including Capitalized Leases) created or extended in connection with renewing, extending or refinancing Indebtedness secured by liens permitted by the preceding paragraphs (F) and set forth on Schedule 1.01(c(G);, provided (i) the principal amount of the Indebtedness so secured shall not be increased over the principal amount thereof outstanding immediately prior to such extension or renewal, (ii) such lien or charge shall not attach to any property other than property encumbered immediately prior to such renewal, extension or refinancing and (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default would exist under SECTION 5.8; and
(i) Liens on property mortgages, conditional sales contracts, security interests, liens, encumbrances or shares other arrangements for the retention of stock title in addition to those described in clauses (A) through (H) above incurred after February 28, 1998 and given to secure Indebtedness for borrowed money of a Subsidiary the Company or any Subsidiary; provided that (x) all Indebtedness for borrowed money secured by liens permitted by this SECTION 5.9(I) at any one time outstanding shall not exceed an amount equal to 25% of Consolidated Net Tangible Assets and (y) at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by of the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account incurrence of such Loan Party to facilitate the purchaseIndebtedness and after giving effect thereto, shipment no Default or storage Event of such inventory or other goods;Default would exist under SECTION 5.8.
Appears in 1 contract
Sources: Note Agreement (Fuller H B Co)
Limitation on Liens. Holdings and the The Borrower will shall not, and the Borrower will shall not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:except for the following (hereinafter referred to collectively as "PERMITTED LIENS"):
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Borrower or its Subsidiaries, as the case may be, in accordance conformity with GAAP;
(fc) Liens in favor of issuers of performance statutory landlords' liens and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business for sums which are not overdue for a period of more than sixty (60) days or which are being contested in good faith by appropriate proceedings;
(d) judgment Liens created by or resulting from any litigation or legal proceeding if released or bonded within thirty (30) days of the date of creation thereof, unless such litigation or legal proceeding could reasonably be expected to have a Material Adverse Effect;
(e) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptionsLiens consisting of easements, minor encumbranceszoning restrictions, easements or reservations of, or rights of others for, licensesflowage rights, rights-of-way, sewerscovenants, electric linesconditions, telegraph and telephone lines restrictions, reservations, licenses, agreements and other similar purposesmatters, or zoning or other restrictions as to which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the use of real properties the property subject thereto or Liens incidental to materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholesuch Subsidiary;
(h) Liens existing on to secure Indebtedness for Purchase Money Indebtedness to the Closing Date extent that such Indebtedness is permitted under subsection 8.4(c); PROVIDED, HOWEVER, that (i) each such Lien is given only to secure the purchase price of the property which is the subject of such Purchase Money Indebtedness, does not extend to any other property and set forth on Schedule 1.01(c)is given at the time of acquisition of the property; and (ii) the Purchase Money Indebtedness secured thereby does not exceed the lesser of the cost of such property or its fair market value at the time of acquisition;
(i) Liens on in favor of lessors under Capitalized Leases to the extent that the Capitalized Lease Obligations thereunder is Indebtedness permitted under subsection 8.4(d); PROVIDED, HOWEVER, that each such Lien extends only to the property or shares which is subject of stock of a Subsidiary such Capitalized Lease, is given only to secure the Capitalized Lease Obligations under such Capitalized Lease, and is given at the time commencement date of such Subsidiary becomes a Subsidiary GuarantorCapitalized Lease; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(j) Liens in existence on property at the time date hereof listed on the Borrower or a Subsidiary Guarantor acquired the propertyMASTER DISCLOSURE SCHEDULE; PROVIDED, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, furtherHOWEVER, that no such Lien encumbers any additional property after the Liens may Closing Date and that the amount of Indebtedness secured thereby shall not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to subsequently be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;increased.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist ------------------- any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with -------- respect thereto are maintained on the books of Holdings or any Subsidiary of Holdings, as the applicable Loan Party case may be, in accordance conformity with GAAP;
(fb) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(ge) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or zoning or other restrictions as to materially interfere with the use of real properties or Liens incidental to the ordinary conduct of the business of the Borrower and Holdings or any of its Subsidiaries Subsidiaries;
(f) leases or subleases granted to the ownership of their properties, third Persons not interfering in each case, which were not incurred in connection any material respect with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and Holdings or any of its Subsidiaries, taken as a whole;
(g) Liens arising from UCC financing statements regarding leases permitted by this Agreement or the Equipment Leases;
(h) Liens existing on any interest or title of a lessor or sublessor under any lease permitted by this Agreement or the Closing Date and set forth on Schedule 1.01(c)Equipment Leases;
(i) Liens on property or shares in favor of stock customs and revenue authorities arising as a matter of a Subsidiary at law to secure payment of custom duties in connection with the time such Subsidiary becomes a Subsidiary Guarantor; provided that importation of goods so long as such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend attach only to any other property owned by the Borrower or any Subsidiaryimported goods;
(j) Liens on property at arising out of consignment or similar arrangements for the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition sale of goods entered into by means of a merger or consolidation with or into the Borrower Holdings or any Subsidiary Guarantor; provided that such Liens are not created or incurred of its Subsidiaries in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiaryordinary course of business;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing created pursuant to the Borrower or another Subsidiary Financing Leases permitted pursuant to be incurred in accordance with Section 6.018.2(e);
(1l) Liens in existence on the Closing Date listed on Schedule 8.3(l), securing Indebtedness permitted by subsection 8.2(c), provided that no -------- such Lien is spread to cover any additional property after the Closing Date and that the amount of Indebtedness secured thereby is not increased;
(m) Liens on specific items of inventory or other goods (i) natural gas compressors and related equipment, and usual accessories and improvements and proceeds thereof, and (ii) oil and gas production equipment, in each case, the acquisition of which were financed with the proceeds of the Indebtedness permitted by subsection 8.2(e) and which secures only such Indebtedness, provided that any Loan Party securing such Loan Party’s obligations in respect Lien is placed upon such -------- natural gas compressor or related equipment or such oil and gas production equipment at the time of bankers’ acceptances issued or created for the account acquisition of such Loan Party natural gas compressors or related equipment or such oil and gas production equipment by Holdings or any of its Subsidiaries and the Lien extends to facilitate no other property, and provided, -------- further, that no such Lien is spread to cover ------- any additional property after the purchasedate such Lien attaches and that the amount of Indebtedness secured thereby is not increased;
(n) Liens on assets of Holdings, shipment or storage HMI, Hanover/▇▇▇▇▇ and the Real Estate Subsidiary listed on Schedule 8.3(n), provided that no such Lien is -------- spread to cover any additional property after the Closing Date and that the amount of Indebtedness secured thereby is not increased;
(o) Liens on the assets of Unqualified Subsidiaries of Holdings securing Indebtedness of such inventory Unqualified Subsidiaries permitted under Section 8.2(g);
(p) Liens securing Derivatives entered into by Holdings and its Subsidiaries which are permitted hereunder;
(q) Liens securing Indebtedness of Holdings or other goodsany Subsidiary permitted under subsection 8.2(d) so long as such Liens attach only to the assets acquired or financed pursuant to such subsection;
(r) Liens on the property or assets of a Person which becomes a Subsidiary after the date hereof securing Indebtedness permitted by subsection 8.2(h), provided that (i) such Liens existed at the time such Person became a -------- Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to cover any property or assets of such Person after the time such Person becomes a Subsidiary, and (iii) the amount of Indebtedness secured thereby is not increased;
(s) Liens that arise in connection with the Equipment Lease Transactions;
(t) Liens listed on Schedule 8.3(t); and
(u) Liens not otherwise permitted in clauses (a)-(t) above securing Indebtedness not exceeding $2,500,000 in the aggregate.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under of any Indebtedness kind on any asset its or property of Holdingstheir Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any Property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Restricted Subsidiary to acquire or agree to acquire, any Property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)in existence on the date hereof and listed in Schedule I hereto;
(b) Liens imposed by any governmental authority or instrumentality to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case performance of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior conditions to the first-priority security interest intended governmental grants or advances which are not repayable absent a failure to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges satisfy such conditions or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims which are not in any instance yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Restricted Subsidiaries, as the case may be, in accordance with GAAP;
(fc) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business which are not overdue for a period of more than 30 days after the Company is notified of same or which are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 7.1(e) hereof;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(gf) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower Company or any of its Restricted Subsidiaries;
(g) Liens on Property of any corporation which becomes a Restricted Subsidiary of the Company after the date of this Agreement, provided that such Liens are in existence at the time such corporation becomes a Restricted Subsidiary of the Company and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred created in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholeanticipation thereof;
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Restricted Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(cwas not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided that no such Lien shall extend to or cover any Property of the Company or such Restricted Subsidiary other than the Property so acquired and improvements thereon; and provided, further, that the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the fair market value (as determined in good faith by a responsible officer of the Company) of such Property at the time it was acquired (by purchase, construction or otherwise);
(i) additional Liens on property or shares of stock of a Subsidiary at upon real and/or personal Property created after the time such Subsidiary becomes a Subsidiary Guarantordate hereof; provided that the aggregate amount of obligations secured thereby shall not represent more than 15% of Tangible Net Worth as of the date each such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantorobligation is incurred; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(j) Liens on property at any extension, renewal or replacement of the time the Borrower or a Subsidiary Guarantor acquired the propertyforegoing, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, furtherhowever, that the Liens may permitted hereunder shall not extend be spread to cover any other property owned by the Borrower or any Subsidiary;
(k) Liens securing additional Indebtedness or Property (other obligations than a substitution of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;like Property).
Appears in 1 contract
Sources: Credit Agreement (Alumax Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of Schedule I hereto (excluding, however, following the making of the initial Loans hereunder, Liens securing Indebtedness to secure Indebtedness incurred under Section 6.01(b)(ibe repaid with the proceeds of such Loans, as indicated on said Schedule I); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries Company or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on covering the Closing Date headquarters facility of the Company in Windsor, Connecticut arising as a result of the sale and set forth on Schedule 1.01(c);leaseback of such facility as permitted under Section 9.07(e) hereof; and
(i) Liens upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Subsidiaries, each of which Liens secures Indebtedness under Section 9.07(f) hereof and which Liens either (A) existed on property such Property before the time of its acquisition and was not created in anticipation thereof or shares (B) was created solely for the purpose of stock securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided that (i) no such Lien shall extend to Credit Agreement or cover any Property of the Company or such Subsidiary other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the fair market value (as determined in good faith by a Subsidiary senior financial officer of the Company) of such Property at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned it was acquired (by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment construction or storage of such inventory or other goods;otherwise).
Appears in 1 contract
Sources: Credit Agreement (Advo Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of their properties, assets (including shares of Capital Stock) or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:except for the following (collectively, "Permitted Exceptions"):
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen', mechanics', materialmen', repairmen' or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), government contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred and statutory or contractual bankers' Liens on monies held in bank accounts in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower United States for amounts paid by the Company or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessas progress payments under government contracts entered into by them;
(g) minor survey exceptionsattachment, minor encumbrances, easements judgment or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not court or arbitration proceedings, provided that the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within 30 days or (in the aggregate materially adversely affect the business case of the Borrower and its Subsidiaries, taken as a wholeany execution or enforcement pending appeal) such lesser time during which such appeal may be taken;
(h) Liens existing granted in the ordinary course of business of the Company or any of its Subsidiaries in favor of issuers of documentary or trade letters of credit for the account of the Company or such Subsidiary which support the purchase and/or importation of inventory of the Company and its Subsidiaries, which Liens secure the reimbursement obligations of the Company or such Subsidiary on account of such letters of credit; provided that each such Lien is limited to (i) the Closing Date assets acquired or shipped with the support of such letter of credit and set forth on Schedule 1.01(c)(ii) any assets of the Company or such Subsidiary which are in the care, custody or control of such issuer in the ordinary course of business;
(i) possessory Liens on property in favor of brokers and dealers arising in connection with the acquisition or shares disposition of stock investments of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantortype permitted by subsection 8.7(a)(ii); provided that such Liens are not created or (i) attach only to such investments and (ii) secure only obligations incurred in the ordinary course and arising in connection with, with the acquisition or disposition of such investments and not any obligation in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiaryconnection with margin financing;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred set forth in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiarySchedule 8.2(j);
(k) Liens on the assets of any Foreign Subsidiary securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another such Foreign Subsidiary permitted to be incurred in accordance with Section 6.01hereunder;
(1l) Liens securing Indebtedness in an aggregate amount at any one time outstanding not in excess of $1,000,000 incurred to purchase or finance the purchase of real or personal property; provided that (i) such Liens shall be created substantially simultaneously with the purchase of such property, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (iii) the amount of Indebtedness is not increased and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the purchase price of such property;
(m) Liens on specific items the property or assets of inventory or other goods and proceeds of any Loan Party a corporation which becomes a Subsidiary after the date hereof securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account Indebtedness of such Loan Party Subsidiary or Contingent Obligations permitted by subsection 8.3(d), provided that (i) such Liens and Indebtedness or Contingent Obligations existed at the time such corporation became a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to facilitate the purchase, shipment cover any other property or storage assets of such inventory corporation after the time such corporation becomes a Subsidiary, (iii) the amount of Indebtedness or Contingent Obligation secured thereby is not increased and (iv) immediately after giving effect to the incurrence of such Lien, no Default or Event of Default shall have occurred and be continuing; and
(n) any extension, renewal or replacement of the foregoing; provided that the Liens permitted by this paragraph shall not extend to or cover any additional Indebtedness or Property (other goods;than a substitution of like Property).
Appears in 1 contract
Limitation on Liens. Holdings and the The Borrower will shall not, and the Borrower will shall not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:except for the following (hereinafter referred to collectively as "PERMITTED LIENS"):
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Borrower or its Subsidiaries, as the case may be, in accordance conformity with GAAP;
(fc) Liens in favor of issuers of performance statutory landlords' liens and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business for sums which are not overdue for a period of more than sixty (60) days or which are being contested in good faith by appropriate proceedings;
(d) judgment Liens created by or resulting from any litigation or legal proceeding if released or bonded within thirty (30) days of the date of creation thereof, unless such litigation or legal proceeding could reasonably be expected to have a Material Adverse Effect;
(e) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptionsLiens consisting of easements, minor encumbranceszoning restrictions, easements or reservations of, or rights of others for, licensesflowage rights, rights-of-way, sewerscovenants, electric linesconditions, telegraph and telephone lines restrictions, reservations, licenses, agreements and other similar purposesmatters, or zoning or other restrictions as to which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the use of real properties the property subject thereto or Liens incidental to materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholesuch Subsidiary;
(h) Liens existing on to secure Indebtedness for Purchase Money Indebtedness to the Closing Date extent that such Indebtedness is permitted under subsection 6.2(c); PROVIDED, HOWEVER, that (i) each such Lien is given only to secure the purchase price of the property which is the subject of such Purchase Money Indebtedness, does not extend to any other property and set forth on Schedule 1.01(c)is given at the time of acquisition of the property; and (ii) the Purchase Money Indebtedness secured thereby does not exceed the lesser of the cost of such property or its fair market value at the time of acquisition;
(i) Liens on in favor of lessors under Capitalized Leases to the extent that the Capitalized Lease Obligations thereunder is Indebtedness permitted under subsection 6.2(c); PROVIDED, HOWEVER, that each such Lien extends only to the property or shares which is subject of stock of a Subsidiary such Capitalized Lease, is given only to secure the Capitalized Lease Obligations under such Capitalized Lease, and is given at the time commencement date of such Subsidiary becomes a Subsidiary GuarantorCapitalized Lease; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(j) Liens in existence on property at the time date hereof listed on the Borrower or a Subsidiary Guarantor acquired the propertyMASTER DISCLOSURE SCHEDULE; PROVIDED, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, furtherHOWEVER, that no such Lien encumbers any additional property after the Liens may Closing Date and that the amount of Indebtedness secured thereby shall not extend to any other property owned by the Borrower or any Subsidiary;subsequently be increased.
(k) Liens securing Indebtedness or other obligations in favor of a Subsidiary owing General Electric Capital Corporation pursuant to the Borrower or another Subsidiary permitted GE Capital Lease up to be incurred in accordance with Section 6.01;
(1) Liens on specific items an aggregate amount of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;$2,000,000.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Guarantor will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under for 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 time required by Section 6.01(b)(xxi);7.4; BGC Partners, Inc. Guaranty
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i)of or resulting from any judgment or award, (i) the time for the appeal or petition for rehearing of which shall not have expired, or (ii) in respect of which the Guarantor or a Subsidiary shall at all times in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; provided, thatprovided that the Guarantor or such Subsidiary (1) is contesting such judgment or award on a timely basis, in good faith and by appropriate proceedings, and (2) has established adequate reserves therefor in accordance with GAAP on the books of the Guarantor or such Subsidiary, as the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)may be;
(c) pledges or deposits Liens in respect of connection with workers’ compensation lawscompensation, unemployment insurance laws or similar legislationand other like laws, or good faith deposits warehousemen’s and attorney’s liens and statutory landlords’ liens and Liens to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rentlike general nature, in each any such case incurred in the ordinary course of business;
(d) Liens imposed by law, business and not in connection with the borrowing of money; provided that any such as carriers’, landlords’, suppliers’, warehousemen’s Lien secures only amounts not due and mechanics’ Liens, rights payable or the payment of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or which is being contested in good faith by appropriate proceedings actions or other proceedings;
(d) Liens arising out incidental to the conduct of judgments business or awards the ownership of properties and assets (including Liens to secure the performance of bids, tenders or trade contracts), in any such case incurred in the ordinary course of business and not in connection with respect to which the applicable Loan Party shall then be proceeding with an appeal borrowing of money; provided that any such Lien does not materially impair the business of the Guarantor and its Subsidiaries taken as a whole or other proceedings the value of the related property for review, if adequate reserves with respect thereto are maintained on the books purposes of such Loan Party in accordance with GAAPbusiness;
(e) Liens for taxes, assessments survey exceptions or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, leases or subleases granted to others, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, (i) which are necessary for the conduct of the activities of the Guarantor and its Subsidiaries or which customarily exist on properties similarly situated or (ii) which do not materially impair their use in the operation of the business of the Borrower Guarantor and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a wholewhole or the value of such properties;
(f) Liens securing Debt of a Subsidiary to the Guarantor or to another Wholly-owned Subsidiary;
(g) Liens existing as of the date of this Guaranty and described on Schedule 5.15 hereto;
(h) Liens existing on securing Debt Incurred in the Closing Date and set forth on Schedule 1.01(c)Ordinary Course of Business of the Guarantor’s Subsidiaries;
(i) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in carrying on the business of the Guarantor or a Subsidiary, and Liens existing on such property or BGC Partners, Inc. Guaranty assets at the time of acquisition thereof or at the time of completion of construction, as the case may be, so long as such existing Liens were not incurred, extended or renewed (by or with the consent of the Guarantor or a Subsidiary) in contemplation of such acquisition or purchase; provided that (i) the Lien shall attach solely to the property or assets acquired, purchased or constructed, (ii) such Lien shall have been created or incurred within 120 days of the date of acquisition or purchase or completion of construction, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Guarantor or a Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition or purchase (as determined in good faith by the Managing General Partner of the Guarantor) or the cost of construction on the date of completion thereof, (iv) Debt secured by any such Lien shall have been created or incurred within the applicable limitations provided in Section 8.2, and (v) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist;
(j) any Lien existing on property or shares of stock assets of a Person at the time such Person is consolidated with or merged into the Guarantor or a Subsidiary or is otherwise acquired by the Guarantor or a Subsidiary and concurrently therewith becomes a Subsidiary, or any Lien existing on any property or assets acquired by the Guarantor or any Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; property or assets are so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) each such Liens are not Lien shall extend solely to the property or assets so acquired, (ii) any Debt secured by any such Lien shall have been created or incurred within the applicable limitations provided in connection withSection 8.2, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
and (jiii) Liens on property at the time of creation, issuance, assumption, guarantee or incurrence of the Borrower Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or a Subsidiary Guarantor acquired the property, including any acquisition by means Event of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiaryDefault would exist;
(k) Liens securing Indebtedness created or other obligations incurred after the date of a the Closing given to secure Debt of the Guarantor or any Subsidiary owing in addition to the Borrower Liens permitted by the preceding clauses (a) through (j) hereof; provided that (i) all Debt secured by such Liens shall have been incurred within the limitations provided in Section 8.2(b) and (ii) at the time of creation, issuance, assumption, guarantee or another Subsidiary permitted incurrence of the Debt secured by such Lien and after giving effect thereto and to be incurred in accordance with Section 6.01;the application of the proceeds thereof, no Default or Event of Default would exist; and
(1l) Liens on specific items of inventory any extension, renewal or other goods and proceeds refunding of any Loan Party securing such Loan Party’s obligations Lien permitted by the preceding clauses (g), (i) and (j) of this Section 8.3 in respect of bankers’ acceptances issued the same property theretofore subject to such Lien in connection with the extension, renewal or created for refunding of the account Debt secured thereby; provided that (i) such extension, renewal or refunding of Debt shall be without increase in the principal amount remaining unpaid as of the date of such Loan Party extension, renewal or refunding, (ii) such Lien shall attach solely to facilitate the purchasesame such property, shipment or storage and (iii) at the time of such inventory extension, renewal or other goods;refunding and after giving effect thereto, no Default or Event of Default would exist. BGC Partners, Inc. Guaranty
Appears in 1 contract
Sources: Guaranty (BGC Partners, Inc.)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi);the Security Documents; 24184999
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedin existence on the date hereof and listed in Part A of Schedule I hereto (excluding, thathowever, in following the case of Term Loan First Lien Collateral, the Liens making of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended initial Loans hereunder, Liens securing Indebtedness to be created in favor repaid with the proceeds of the Collateral Agent for the benefit of the Term Loan Secured Parties (such Loans, as defined in the Intercreditor Agreementindicated on said Schedule I);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 60 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries Company or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;; and
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(c);
was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided that (i) Liens on property no such Lien shall extend to or shares cover any Property of stock the Company or such Subsidiary other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the fair market value (as determined in good faith by a Subsidiary senior financial officer of the Company) of such Property at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned it was acquired (by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment construction or storage of such inventory or other goods;otherwise).
Appears in 1 contract
Limitation on Liens. Holdings and the The Borrower will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property (1) Receivables of Holdings, the Borrower or any Subsidiary of its Principal Subsidiaries or (2) Restricted Shares, in each case whether now owned or hereafter acquired, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue due or Liens for a period of more than thirty (30) days or taxes being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to for which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on (in the books good faith judgment of such Loan Party in accordance with GAAPthe management of the Borrower) have been established;
(eb) Liens for taxes, assessments imposed by law (i) which are incurred in the ordinary course of business and (x) which do not in the aggregate materially detract from the value of such Receivables or other governmental charges Restricted Shares or claims not yet overdue for a period materially impair the use thereof in the operation of more than thirty the business of the Borrower or any of its Subsidiaries or (30y) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on which proceedings have the books effect of preventing the forfeiture or sale of the applicable Loan Party in accordance with GAAP;
Receivables or Restricted Shares subject to such Lien or (fii) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect which do not relate to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business material liabilities of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect detract from the business value of the Receivables or Restricted Shares of the Borrower and its Subsidiaries, Subsidiaries taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such no Lien permitted under this clause (b) may secure any obligation in an amount exceeding $100,000,000 and all Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens permitted under this clause (b) may not extend secure obligations in an aggregate amount exceeding $150,000,000; and
(c) any pledge of Receivables to any a Federal Reserve Bank or a Federal Home Loan Bank made in the ordinary course of business to secure advances or other property owned by transactions and manage the liquidity position of the Borrower or any such Principal Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will The Company shall not, and the Borrower will not nor shall it permit any of the Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien that secures obligations under of any Indebtedness kind on any asset or property of HoldingsProperty owned by any such Person; provided, however, that the Borrower or any Subsidiary now owned or hereafter acquired, exceptforegoing shall not apply to nor operate to prevent:
(a) Liens to secure Indebtedness incurred arising by statute in connection with worker's compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other similar charges (other then Liens arising under Section 6.01(b)(xxiERISA);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or good faith cash deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, connection with tenders, contracts (or leases to which the Company or any Subsidiary is a party or other than for the payment of Indebtedness) or leases, or cash deposits required to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred be made in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, provided in each casecase that the obligation is not for borrowed money and that the obligation secured is not overdue or, for sums not yet overdue for a period of more than thirty (30) days or if overdue, is being contested in good faith by appropriate proceedings which prevent enforcement of the matter under contest and adequate reserves have been established therefor; (b) mechanics', workmen's, materialmen's, landlords', carriers', or other similar Liens arising out in the ordinary course of judgments or awards business with respect to obligations which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedingsproceedings which prevent enforcement of the matter under contest; (c) the pledge of assets (other than the Intellectual Property of the Company or any Subsidiary) for the purpose of securing an appeal, stay or discharge in the course of any legal proceeding, provided that the aggregate amount of liabilities of the Company and its Subsidiaries secured by a pledge of assets permitted under this subsection, including interest and penalties thereon, if adequate reserves with respect thereto are maintained on the books any, shall not be in excess of the applicable Loan Party in accordance with GAAP;
$250,000 at any one time outstanding; (fd) Liens in favor any interest or title of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or a lessor under any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
operating lease; (ge) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances against real property incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not materially detract from the value of the Property subject thereto or zoning or other restrictions as to materially interfere with the use of real properties or Liens incidental to the ordinary conduct of the business of the Borrower and its Subsidiaries Company or any Subsidiary; (f) the Liens identified on Schedule 7.2; (g) Liens on cash deposited with account debtors to secure performance by the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not Company or any Subsidiary in the aggregate materially adversely affect the ordinary course of business of the Borrower subject to customary and its Subsidiaries, taken as a whole;
reasonable terms; (h) Liens existing on the Closing Date set-off rights of depository institutions; and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
Security Agreement (j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the propertycollectively, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;"Permitted Liens").
Appears in 1 contract
Sources: Senior Note and Warrant Purchase Agreement (Cardiac Science Inc)
Limitation on Liens. Holdings and the Borrower SSC will not, and the Borrower nor will not it permit any of the its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to in existence on the date hereof that either (x) are listed in Part B of Schedule I hereto or (y) secure Indebtedness incurred under Section 6.01(b)(i); providedthe aggregate principal or face amount of which is less than $100,000, that, in and renewals or replacements thereof provided that the case of Term Loan First Lien Collateral, the Liens amount of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior obligations secured thereby is not increased, and such Liens are not spread to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)cover any additional Property;
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by lawany governmental authority for taxes, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums assessments or charges not yet overdue for a period of more than thirty (30) days due or either that do not exceed $100,000 in the aggregate or that are being contested in good faith and by appropriate proceedings or other Liens arising out if (in the case of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if such contested taxes) adequate reserves with respect thereto are maintained on the books of such Loan Party SSC or the affected Restricted Subsidiaries, as the case may be, in accordance with GAAP;
(ed) Liens for taxescarriers', assessments warehousemen's, mechanics', materialmen's, landlord's, repairmen's or other governmental charges or claims like Liens arising in the ordinary course of business that are not yet overdue for a period of more than thirty (30) 30 days or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedingsproceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 10(i) hereof;
(e) pledges or deposits under worker's compensation, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAPunemployment insurance and other social security legislation;
(f) Liens in favor deposits to secure the performance of issuers bids, trade contracts (other than for Indebtedness), leases, statutory obligations, insurance, surety and appeal bonds, performance bonds and other obligations of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued like nature incurred in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and SSC or any of its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(h) additional Liens existing upon real and/or personal Property created after the date hereof, provided that the aggregate Indebtedness secured thereby and incurred on and after the Closing Date and set forth on Schedule 1.01(c);date hereof shall not exceed $4,000,000 in the aggregate at any one time outstanding.
(i) Liens on property or shares Property of stock of a Subsidiary at the time such Subsidiary any Person that becomes a Restricted Subsidiary Guarantor; of SSC after the date hereof, provided that such Liens are in existence at the time such corporation becomes a Restricted Subsidiary of SSC and were not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiaryanticipation thereof;
(j) Liens upon real and/or tangible personal Property acquired after the date hereof by SSC or any of its Restricted Subsidiaries that existed on property at such Property before the time the Borrower or a Subsidiary Guarantor acquired the property, including any of its acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantorand were not created in anticipation thereof; provided that no such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not Lien shall extend to or cover any Property of SSC or such Restricted Subsidiary other property owned by than the Borrower or any SubsidiaryProperty so acquired and improvements thereon;
(k) Liens securing Indebtedness rights of set-off held by banks by operation of law or other obligations pursuant to customary deposit agreements against deposits held at or certificates of a Subsidiary owing to deposit issued by such banks so long as such deposits or certificates of deposit Credit Agreement 117 - 112 - are made or acquired in the Borrower or another Subsidiary permitted to be incurred ordinary course of business and not in accordance with Section 6.01anticipation of the incurrence of any Indebtedness;
(1l) the interests of licensors, lessors, sublessors, licensees, lessees and sublicensees in licenses and leases entered into in the ordinary course of business and not securing Indebtedness;
(m) Liens on specific items of inventory capital stock of, or partnership interests or other goods and proceeds equity interests in, Unrestricted Subsidiaries securing obligations of Unrestricted Subsidiaries; and
(n) Liens on Property located outside of the United States of America of any Loan Party securing Restricted Subsidiary the jurisdiction of organization of which and the principal place of business of which is located outside of the United States of America to the extent that such Loan Party’s obligations in respect of bankers’ acceptances issued or created for Liens secure the account Indebtedness of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Restricted Subsidiary permitted by Section 9.07(f) hereof.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer allow to exist exist, any Lien that secures obligations under upon any Indebtedness on any asset of its property, income or property of Holdingsprofits, the Borrower or any Subsidiary whether now owned or held or hereafter acquired, including attachment, levy, garnishment or other judicial process relating to such property, except:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)in existence on the date hereof and listed on Schedule 5.3 hereof;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Borrower, in accordance with GAAP;
(fc) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained or the books of the Borrower, in accordance with GAAP;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(gf) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties property or Liens incidental to imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower and or any of its Subsidiaries Subsidiaries;
(g) Liens upon Capital Equipment to secure purchase money Indebtedness or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business Capital Lease of the Borrower or a Subsidiary permitted under Section 5.1(a); provided, that, (i) such Lien does not extend to or cover any other property of the Borrower or such Subsidiary and its Subsidiaries, taken as a whole(ii) such Lien does not secure any Indebtedness other than the Indebtedness so incurred;
(h) Liens existing on the Closing Date arising from or upon any judgment or award, provided that such judgment or award does not exceed $50,000 and set forth on Schedule 1.01(c);is being contested in good faith by proper appeal proceedings, such judgment or award is not secured by any Lien which is not discharged within thirty (30) days, and only so long as execution thereon shall be stayed; and
(i) Liens on property now or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing hereafter granted to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Lender under the Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Documents.
Appears in 1 contract
Sources: Credit Agreement (Cell Genesys Inc)
Limitation on Liens. Holdings and the Borrower Toy Biz will not, and the Borrower will not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of their properties, assets (including shares of stock) or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of Toy Biz or its Subsidiaries, as the applicable Loan Party case may be, in accordance conformity with GAAP;
(fb) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(ge) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or zoning or other restrictions as to materially interfere with the use of real properties or Liens incidental to the ordinary conduct of the business of the Borrower Toy Biz or such Subsidiary;
(f) Liens (not otherwise permitted hereunder) which secure obligations not exceeding (as to Toy Biz and its Subsidiaries or all Subsidiaries) $250,000 in aggregate amount at any time outstanding;
(g) Liens created pursuant to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;Security Documents; and
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(csecuring letters of credit permitted under subsection 7.1(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;.
Appears in 1 contract
Sources: Credit Agreement (Toy Biz Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens to secure Indebtedness incurred under for 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 time required by Section 6.01(b)(xxi)9.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i)of or resulting from any judgment or award, (i) the time for the appeal or petition for rehearing of which shall not have expired, or (ii) in respect of which the Company or a Subsidiary shall at all times in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured; provided, thatprovided that the Company or such Subsidiary (1) is contesting such judgment or award on a timely basis, in good faith and by appropriate proceedings, and (2) has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary, as the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)may be;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation lawsconnection with worker’s compensation, unemployment insurance laws and other like laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens) and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Lien of rentlike general nature, in each any such case incurred in the ordinary course of business;
business and not in connection with the borrowing of money; provided that (di) Liens imposed by law, any such as carriers’, landlords’, suppliers’, warehousemen’s Lien secures only amounts not due and mechanics’ Liens, rights payable or the payment of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the business of the Company and its Subsidiaries taken as a whole or other Liens arising out the value of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings related property for review, if adequate reserves with respect thereto are maintained on the books purposes of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, leases or subleases granted to others, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, (i) which are necessary for the conduct of the activities of the Company and its Subsidiaries or which customarily exist on properties of corporations engaged in similar activities and similarly situated and (ii) which do not in any event materially impair their use in the operation of the business of the Borrower Company and its Subsidiaries taken as a whole or the value of such properties;
(e) Liens securing Indebtedness of the Company to a Wholly-owned Subsidiary or Indebtedness of a Subsidiary to the Company or to another Wholly-owned Subsidiary;
(f) Liens existing as of July 22, 2010 and described on Schedule 5.15 hereto;
(g) Liens created or incurred after the ownership date of their properties, in each case, which were not the Closing given to secure the payment of the purchase price incurred in connection with Indebtedness the acquisition or purchase or the cost of construction of property or of assets useful and which do not intended to be used in the aggregate materially adversely affect carrying on the business of the Borrower Company or a Subsidiary, including Liens existing on such property or assets at the time of acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to secure the payment of the acquisition or purchase price or cost of construction, as the case may be, of the property or assets to which they attach; provided that (i) the Lien shall attach solely to the property or assets acquired, purchased or constructed, (ii) such Lien shall have been created or incurred within 365 days of the date of acquisition or purchase or completion of construction, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property or assets, whether or not assumed by the Company or a Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition or purchase (as determined in good faith by a Senior Financial Officer of the Company) or the cost of construction on the date of completion thereof; and its Subsidiaries(iv) at the time of creation, taken as a wholeissuance, assumption, guarantee or incurrence of the Indebtedness secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist;
(h) Liens any Lien existing on property or assets of a Person at the Closing Date time such Person is consolidated with or merged into the Company or a Subsidiary or becomes a Subsidiary, or any Lien existing on any property or assets acquired by the Company or any Subsidiary at the time such property or assets are so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (i) each such Lien shall extend solely to the property or assets so acquired, and set forth on Schedule 1.01(c)(ii) at the time of creation, issuance, assumption, guarantee or incurrence of the Indebtedness secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist;
(i) Liens on property created or shares incurred after the date of stock the Closing given to secure Indebtedness of a the Company or any Subsidiary in addition to the Liens permitted by the preceding clauses (a) through (h) hereof; provided that at the time of creation, issuance, assumption, guarantee or incurrence of the Indebtedness secured by such Subsidiary becomes a Subsidiary GuarantorLien and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; and provided, further, that, notwithstanding the foregoing, in the event that at any time the Company or any Subsidiary provides a Lien to or for the benefit of the lenders under the Bank Credit Agreement or the administrative agent on their behalf, then the Company will, and will cause each of its Subsidiaries that has provided such Lien, to concurrently grant to or for the benefit of the holders of Notes a similar first priority Lien (subject only to Liens may not extend to any other property owned permitted by the Borrower Bank Credit Agreement and this Section 10.4, and ranking pari passu with the Lien provided to or any Subsidiary;for the benefit of the lenders under such Bank Credit Agreement), over the same assets, property and undertaking of the Company and such Subsidiary as those encumbered in respect of the Bank Credit Agreement, in form and substance satisfactory to the Required Holders with such security to be the subject of an intercreditor agreement among the lenders under the Bank Credit Agreement or the administrative agent on their behalf and the holders of Notes, which shall be satisfactory in form and substance to the Required Holders; and
(j) Liens on any extension, renewal or refunding of any Lien permitted by the preceding clause (f) of this Section 10.4 in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or refunding of the Indebtedness secured thereby; provided that (i) such extension, renewal or refunding of Indebtedness shall be without increase in the principal amount remaining unpaid as of the date of such extension, renewal or refunding, (ii) such Lien shall attach solely to the same such property, and (iii) at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchaseextension, shipment renewal or storage refunding and after giving effect thereto, no Default or Event of such inventory or other goods;Default would exist.
Appears in 1 contract
Sources: Master Note Purchase Agreement (Davey Tree Expert Co)
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist exist, or permit any Lien that secures obligations under any Indebtedness on any asset its property, revenues or property of Holdingsassets, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept as follows:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(di) Liens imposed by law, such as carriers’, warehousemen’s, landlords’’ repairmen’s, suppliers’, warehousemenmaterialmen’s and mechanics’ Liens, rights of distraint Liens and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out in the ordinary course of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPbusiness;
(eii) Liens on the capital stock of or any other equity interest in any Subsidiary to secure Nonrecourse Indebtedness;
(iii) Liens for taxes, assessments or other governmental charges charges, levies, or claims fines (including such amounts arising under environmental law) on property of the Borrower if the same shall not yet overdue for at the time be delinquent or thereafter can be paid without a period of more than thirty (30) days material penalty, or payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(fiv) Liens upon or in any property acquired in the ordinary course of business to secure the purchase price of such property or to secure any obligation incurred solely for the purpose of financing the acquisition of such property;
(v) Liens existing on property at the time of the acquisition thereof (other than any such Lien created in contemplation of such acquisition unless permitted by the preceding clause (iv));
(vi) Liens granted in connection with any financing arrangement for the purchase of nuclear fuel or the financing of pollution control facilities, limited to the fuel or facilities so purchased or acquired;
(vii) Liens arising in connection with sales or transfers of, or financing secured by, accounts receivable or related contracts, provided that any such sale, transfer or financing shall be on arms’ length terms;
(viii) Liens securing Permitted Obligations and reimbursement obligations in respect of letters of credit issued to support Permitted Obligations (for the avoidance of doubt, the Electric Reliability Council of Texas (ERCOT) program and any other similar agreement or arrangement, including with any Independent System Operator or Regional Transmission Organization, are permitted under this clause (viii));
(ix) Permitted Encumbrances;
(x) Liens arising in connection with sale and leaseback transactions entered into by the Borrower, but only to the extent that the aggregate purchase price of all assets sold by the Borrower during the term of this Agreement pursuant to such sale and leaseback transactions does not exceed $1,000,000,000;
(xi) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, compensation arrangements, supplemental retirement plans arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, compensation arrangements, supplemental retirement plans or other social security or similar legislation;
(xii) Liens constituting attachment, judgment and other similar Liens arising in connection with court proceedings to the extent not constituting an Event of Default under Section 6.01(f);
(xiii) Liens created in the ordinary course of business to secure liability to insurance carriers and Liens on insurance policies and the proceeds thereof (whether accrued or not), rights or claims against an insurer or other similar asset securing insurance premium financings;
(xiv) Liens in favor of issuers customs and revenue authorities arising as a matter of performance and surety bonds or bid bonds or with respect law to other regulatory requirements or pledges or deposits securing secure payment of insurance premiums, leases to which customs duties in connection with the Borrower or any importation of its Subsidiaries is a party or other similar obligations or letters of credit issued goods in the ordinary course of its business;
(gxv) minor survey exceptions, minor encumbrances, easements or reservations of, or Liens in the nature of rights of others forsetoff, licensesbankers’ liens, rights-of-wayrevocation, sewersrefund, electric lineschargeback, telegraph and telephone lines and other counterclaim, netting of cash amounts or similar purposesrights as to deposit accounts, commodity accounts or zoning securities accounts or other restrictions as funds maintained with a credit or depository institution;
(xvi) Liens consisting of pledges of industrial development, pollution control or similar revenue bonds in connection with the remarketing of such bonds;
(xvii) Liens created under Section 2.19 and similar cash collateralization obligations relating to defaulting lenders and remedies upon default;
(xviii) Liens arising under leases or subleases, licenses or sublicenses granted to others that do not materially interfere with the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower Borrower;
(xix) Liens resulting from any restriction on any equity interest (or project interest, interests in any energy facility (including undivided interests)) of a Person providing for a breach, termination or default under any owners, participation, shared facility, joint venture, stockholder, membership, limited liability company or partnership agreement between such Person and its Subsidiaries one or more other holders of equity interest (or project interest, interests in any energy facility (including undivided interests)) of such Person, to the ownership extent a security interest or other Lien is created on any such interest as a result thereof;
(xx) Liens granted on cash or cash equivalents to defease or repay Indebtedness of their properties, in each case, which were not incurred the Borrower no later than 60 days after the creation of such Lien;
(xxi) Liens created in connection with Indebtedness sales, transfers, leases, assignment or other conveyances or dispositions of assets, including (A) Liens on assets or securities granted or deemed to arise in connection with and which do as a result of the execution, delivery or performance of contracts to purchase or sell such assets or securities, and (B) rights of first refusal, options or other contractual rights or obligations to sell, assign or otherwise dispose of any interest therein; and
(xxii) Liens, other than those described above in this Section 5.02(a), provided that the aggregate amount of all Debt secured by Liens permitted by this clause (xxii) shall not exceed in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the any one time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;outstanding $100,000,000.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower Westinghouse will not, and the Borrower will not permit any of the its Material Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on of its Property, or enter into any asset or property of HoldingsSale/Leaseback with respect to any such Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except; provided that the foregoing restrictions shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any Governmental Authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in the books ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the applicable Loan Party extent, for an amount and for a period not resulting in accordance with GAAPan Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure surety, appeal or performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of money;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or minor imperfections in title thereto and Liens incidental to under leases and subleases which, in the aggregate, are not material in amount, and LAW2:13233 64 59 which do not interfere in any material respects with the ordinary conduct of the business of the Borrower Westinghouse and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(g) Liens on Property of any Subsidiary of Westinghouse or of any Person which is or was merged with or into Westinghouse or any Subsidiary thereof, provided that such Liens are or were in existence at the time such Person becomes or became a Subsidiary of Westinghouse or such Person merged with or into Westinghouse or any Subsidiary thereof, as the case may be, were not created in anticipation thereof other than to finance the purchase thereof and are not spread to cover any Property other than the Property covered at the time of the relevant transaction;
(h) Liens existing upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Westinghouse or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(c)was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, all or a part of the cost (including the cost of construction) of such Property or improvements thereon; provided that no such Lien shall extend to or cover any Property of Westinghouse or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) Liens mortgages on property Property securing indebtedness in favor of the United States of America or shares any state thereof or any department, agency or instrumentality or political subdivision of stock the United States of a Subsidiary at America or any state thereof, incurred for the time purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such Subsidiary becomes a Subsidiary Guarantor; provided that mortgages (including without limitation such Liens are not created debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred in connection withto secure progress, advance or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend payments pursuant to any other property owned by the Borrower contract or provision of any Subsidiarystatute;
(j) Liens on property at the time the Borrower securing Indebtedness owed to Westinghouse or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiaryWholly Owned Subsidiary of Westinghouse;
(k) Liens securing (i) upon the receivables and inventory of Westinghouse or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables and inventory in an aggregate amount not greater than $800,000,000 less the aggregate amount of Indebtedness that is secured pursuant to clause (ii) below, provided that the terms of such Indebtedness do not provide for any recourse to Westinghouse or other obligations of a any Material Subsidiary owing (except to the Borrower extent of breaches of representations and warranties of Westinghouse or another Subsidiary permitted any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Westinghouse to be incurred secure Indebtedness of Westinghouse in accordance with Section 6.01an aggregate amount not greater than $250,000,000;
(1l) Liens Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of CBS's headquarters building located at 51 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇; (n) any Sale/Leaseback of assets of CBS owned on specific items of inventory or other goods the Closing Date and proceeds listed on Schedule 5.6(n), provided, that the Net Cash Proceeds thereof shall be promptly applied to the LAW2:13233 65 60 prepayment of any Loan Party securing outstanding Term Loans pursuant to Section 2.22 (or Section 2.23, to the extent said Section would require such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goodsprepayment);
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Reporting Entity will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property or property of Holdingsassets (other than Unrestricted Margin Stock), the Borrower or any Subsidiary whether now owned or hereafter acquired, except; provided that this Section shall not apply to the following:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)for taxes not yet due or that are being actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP;
(b) other statutory, common law or contractual Liens incidental to secure Indebtedness the conduct of its business or the ownership of its property and assets that (A) were not incurred under Section 6.01(b)(i); providedin connection with the borrowing of money or the obtaining of advances or credit, that, and (B) do not in the case aggregate materially detract from the value of Term Loan First Lien Collateral, its property or assets or materially impair the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined use thereof in the Intercreditor Agreement);operation of its business; STERIS CORPORATION NOTE PURCHASE AGREEMENT
(c) pledges or deposits in respect the ordinary course of business in connection with workers’ compensation lawscompensation, unemployment insurance laws or similar and other social security legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtednessany Lien imposed by ERISA;
(d) or leases, pledges or deposits to secure public the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or statutory litigation), performance bonds and other obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case a like nature incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments on property or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject assets to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books secure obligations owing to any member of the applicable Loan Party in accordance with GAAPConsolidated Group;
(f) (A) purchase money Liens on fixed or capital assets or for the deferred purchase price of property, provided that such Lien is limited to the purchase price and only attaches to the property being acquired, constructed or improved and, for the avoidance of doubt, proceeds thereof; provided further that purchase money Liens in favor of issuers of performance and surety bonds or bid bonds or any lender may be cross-collateralized with respect to other regulatory requirements obligations of such type owing to such lender and (B) Capital Leases; or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessfinance leases;
(g) minor survey exceptionseasements, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning restrictions or other restrictions as to minor defects or irregularities in title of real property not interfering in any material respect with the use of real properties or Liens incidental to the conduct of such property in the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business any member of the Borrower and its Subsidiaries, taken as a wholeConsolidated Group;;
(h) Liens existing on the date of the Initial Closing andAmendment Effective Date and and, to the extent securing obligations in excess of $25,000,000, set forth on Schedule 1.01(c)5.15;;
(i) Liens on property or shares of stock Receivables Related Assets of a Receivables Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, with the sale of such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend Receivables Related Assets pursuant to any other property owned by the Borrower or any SubsidiarySection 10.5(c) hereof;
(j) in addition to the Liens on property permitted herein, additional Liens securing Debt or other obligations; provided that, the aggregate principal amount of Priority Debt at the time such Debt or such other obligation is created or incurred shall not exceed an amount equal to 10% of the Borrower Consolidated Total Assets; provided further, that notwithstanding the foregoing and without limiting Section 9.8, the Reporting Entity shall not, and shall not permit any of its Restricted Subsidiaries to, secure pursuant to this Section 10.3(j) any Debt outstanding under or pursuant to any Material Credit Facility unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Required Holders in substance and in form, including, without limitation, an intercreditor agreement and opinions of counsel to the Reporting Entity and/or any such Restricted Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Required Holders (provided that an opinion from a nationally recognized law firm and/or in-house counsel of the Company shall be reasonably satisfactory to the Required Holders); STERIS CORPORATION NOTE PURCHASE AGREEMENT
(k) Permitted Encumbrances;
(l) any Lien existing on any property or asset prior to the acquisition thereof by any member of the Consolidated Group or existing on any property or assets of any Person at the time such Person becomes a Restricted Subsidiary Guarantor acquired after the property, including any acquisition by means date of a merger or consolidation with or into the Borrower or any Subsidiary GuarantorInitial Closing; provided that (i) such Liens are Lien is not created in contemplation of or incurred in connection withwith such acquisition or such Person becoming a Restricted Subsidiary, or in contemplation ofas the case may be, and (ii) such acquisition; provided, further, that the Liens may Lien does not extend apply to any other property owned by or assets of any member of the Borrower or any SubsidiaryConsolidated Group (other than Persons who become members of the Consolidated Group in connection with such acquisition);
(km) Liens securing Indebtedness or arising in connection with any margin posted related to Hedge Agreements entered other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01than for speculative purposes;
(1n) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in Sections 10.3(f), 10.3(h), 10.3(j) and 10.3(l); provided that (x) the principal amount of the obligations secured thereby shall be limited to the principal amount of the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof) and (y) such Lien shall be limited to all or a part of the assets that secured the obligation so extended, renewed or replaced and (z) in the case of any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (j), such extension, renewal or replacement (or successive renewals or replacements) shall utilize basket capacity under clause (j) prior to any excess amount not permitted thereunder being permitted under this clause (n); and
(o) Liens on specific items the products and proceeds (including, without limitation, insurance condemnation and eminent domain proceeds) of inventory and accessions to, and contract or other goods rights (including rights under insurance policies and product warranties) derivative of or relating to, property subject to Liens under any of the paragraphs of this Section 10.3; and
(p) Liens on the proceeds of any Loan Party securing such Loan Party’s obligations Specified Indebtedness deposited with a trustee or paying agent or otherwise segregated or held in trust or under an escrow or other funding arrangement with respect of bankers’ acceptances issued or created for to a Pending Transaction prior to the account consummation of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Pending Transaction.
Appears in 1 contract
Sources: Note Purchase Agreement (STERIS PLC)
Limitation on Liens. Holdings and the The Borrower will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens to secure in existence on the date hereof securing Indebtedness incurred under Section 6.01(b)(xxi)outstanding on the date hereof in an aggregate principal amount not exceeding $50,000,000;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith and by appropriate proceedingsproceedings if, if unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Borrower or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fc) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(gf) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(g) Liens on Property of any corporation which becomes a Subsidiary of the Borrower after the date of this Agreement; provided that such Liens are in existence at the time such corporation becomes a Subsidiary of the Borrower, were not created in anticipation thereof and do not at any time secure any Indebtedness other than Indebtedness which was secured by such Liens at the time such corporation became a Subsidiary;
(h) Liens upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries Subsidiaries, each of which Liens either (A) existed on such Property before the time of its acquisition and was not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided that no such Lien shall extend to or cover any Property of the Borrower or such Subsidiary other than the Property so acquired and improvements thereon;
(i) Liens incidental to the conduct of its business or the ownership of their properties, in each case, its Property which were not incurred in connection with Indebtedness the borrowing of money, the obtaining of credit or Derivatives Obligations, and which do not in the aggregate materially adversely affect detract from the business value of its Property or materially impair the Borrower and use thereof in the operation of its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiarybusiness;
(j) Liens on property at arising from judgments, decrees or attachments not in excess of $25,000,000 in the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means aggregate and in circumstances not constituting an Event of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiaryDefault under Section 6.01(h) hereof;
(k) leases or subleases granted to others otherwise permitted by this Agreement;
(l) UCC financing statements and other similar filings regarding leases and other Liens otherwise permitted by this Agreement;
(m) rights to receive income in connection with consignment arrangements or licensing agreements in the ordinary course of the Borrower's or such Subsidiary's business, as the case may be;
(n) Liens on cash and cash equivalents securing Derivatives Obligations, provided that the aggregate amount of cash and cash equivalents subject to such Liens may at no time exceed $50,000,000;
(o) any extension, renewal or replacement of the foregoing, provided, however, that the Liens permitted hereunder shall not be spread to cover any additional Indebtedness or Property (other obligations than a substitution of a Subsidiary owing like Property); and
(p) Liens on "margin stock" (as defined in the Margin Regulations), if and to the extent that the value of such margin stock exceeds 25% of the total assets of the Borrower and its Subsidiaries subject to this Section. Notwithstanding the foregoing, nothing in this Section shall restrict the ability of the Borrower or another Subsidiary permitted any of its Subsidiaries to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory sell or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;assign its accounts receivable.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, 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, without making effective provisions whereby all of the Notes shall be directly secured equally and ratably with all of the other obligations secured thereby (and providing to the holders of the Notes an opinion satisfactory in form and substance to the holders of the Notes from counsel satisfactory to the holders of the Notes to the effect that the Notes are so secured) except:
(a) Liens to secure Indebtedness incurred under 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 time required by Section 6.01(b)(xxi)9.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the ownership of properties and assets (including but not limited to warehousemen’s and attorneys’ liens and statutory landlords’ liens) and specific Liens including but not limited to pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits Securities to secure bidsdeposits, tenders, contracts (and other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Liens incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each casecase the obligation secured is not overdue or, for sums not yet overdue for a period of more than thirty (30) days or if overdue, is being contested in good faith by appropriate actions or proceedings the effect of which is to stay or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books prevent enforcement of such Loan Party in accordance with GAAPLien;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company and its Subsidiaries or which customarily exist on properties of corporations or other business entities engaged in similar activities and similarly situated and which do not in any event, individually or in the aggregate, materially impair their use in the operation of the business of the Borrower Company and its Subsidiaries Restricted Subsidiaries;
(e) Liens existing on fixed assets at the time of acquisition thereof by the Company or a Subsidiary or Liens existing on fixed assets owned by a business entity at the time such entity is acquired by the Company or a Subsidiary; provided that (i) any such Lien shall attach only to the fixed assets so acquired or to the ownership of their propertiesfixed assets owned by the business entity so acquired, in each caseas the case may be, which were (ii) the Lien and the Indebtedness secured thereby shall not have been incurred in connection with contemplation of the acquisition, and (iii) all Indebtedness and which do not secured by any such Lien shall have been incurred within the applicable limitations of Section 10.5;
(f) in the aggregate materially adversely affect the business event of a consolidation or merger of the Borrower Company in compliance with Section 10.1(c) where the surviving corporation is not the Company (the surviving corporation being the “Acquiring Corporation”), Liens existing on assets of the Acquiring Corporation and its Subsidiariessubsidiaries at the time of the consolidation or merger, taken as the case may be, so long as (i) the Lien shall attach only to the assets to which the Lien was attached at the time of the consolidation or merger, and (ii) the Lien and the Indebtedness secured thereby shall not have been incurred in contemplation of such consolidation or merger;
(g) Liens securing Indebtedness of a wholeRestricted Subsidiary to the Company;
(h) Liens existing on as of the First Closing Date and set forth on Schedule 1.01(c)10.4;
(i) Liens incurred after the First Closing Date given to secure the payment of the purchase price incurred in connection with the acquisition of fixed assets useful and intended to be used in carrying on property the business of the Company or shares of stock of a Subsidiary Restricted Subsidiary, including Finance Leases; provided that (i) the Lien shall attach solely to the fixed assets purchased, (ii) at the time of acquisition of such Subsidiary becomes a Subsidiary Guarantor; provided that fixed assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such Liens are fixed assets whether or not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned assumed by the Borrower Company or a Restricted Subsidiary shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition of such fixed assets (as determined in good faith by the Board of Directors of the Company), (iii) the aggregate of all amounts so financed outstanding at any Subsidiarytime on and after the First Closing Date by the Company and its Restricted Subsidiaries shall not exceed the greater of (A) $10,000,000 or (B) 10% of Consolidated Net Worth, and (iv) all such Indebtedness shall have been incurred within the applicable limitations provided in Section 10.5;
(j) Liens on the property at of the time the Borrower Company securing its mortgage bonds issued pursuant to a mortgage bond indenture or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisitionother governing instrument; provided, further, that the Liens may not extend (A) such mortgage bond indenture or governing instrument shall have been consented to any other property owned in writing by the Borrower or Required Holders and (B) provision shall have been made concurrently with the issuance of any Subsidiary;such mortgage bonds for the Notes to be equally and ratably secured by the Lien securing such mortgage bonds; and
(k) renewals and extensions of Liens securing permitted pursuant to clauses (a) through (j) of this Section 10.4 given to secure the renewal, extension or replacement of the Indebtedness secured thereby without increase in the principal amount of such Indebtedness outstanding at the time of such renewal, extension or other obligations of a Subsidiary owing replacement, which Liens attach solely to the Borrower property theretofore securing such Indebtedness. Notwithstanding the foregoing provisions of this Section 10.4, the Company shall not, and shall not permit any Restricted Subsidiary to, create or another Subsidiary permitted incur, or suffer to be incurred in accordance or to exist, any Lien securing obligations owing under any Material Credit Facility on or with Section 6.01;
respect to any property or asset (1) Liens on specific items of inventory including, without limitation, any document or other goods and proceeds of any Loan Party securing such Loan Party’s obligations instrument in respect of bankers’ acceptances issued goods or created for accounts receivable) of the account Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, unless the Company or such Restricted Subsidiary makes effective provision whereby the Notes shall be equally and ratably with all such obligations pursuant to such agreements (including, without limitation, an intercreditor agreement), certificates, legal opinions, showings and other instruments reasonably satisfactory to the holders as such holders may reasonably require to evidence and retain the pari passu ranking of the obligations of the Company with respect to the Notes and such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Material Credit Facility.
Appears in 1 contract
Sources: Note Purchase Agreement (SJW Group)
Limitation on Liens. Holdings and the Borrower No Obligor will, or will not, and the Borrower will not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on of its Property (excluding any asset Property owned by a customer but in the possession of the Obligor or property of Holdingsits Subsidiary), the Borrower or any Subsidiary whether now owned or hereafter acquired, except:
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedin existence on the date hereof and listed in Part B of Schedule II hereto (excluding, thathowever, in following the case of Term Loan First Lien Collateral, the Liens making of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended initial Loans hereunder, Liens securing Indebtedness to be created in favor repaid with the proceeds of such Loans, as indicated on said Schedule II, but including any continuation of any existing Liens on Property of Unidec securing any refinancing of the Collateral Agent for the benefit Indebtedness of the Term Loan Secured Parties (as defined Unidec identified in the Intercreditor AgreementPart A of Schedule II hereto);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;any Obligor; and
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by any Obligor, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(c);
was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; PROVIDED that (i) Liens on property no such Lien shall extend to or shares cover any Property of stock any Obligor, other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the fair market value (as determined in good faith by a Subsidiary senior financial officer of the relevant Obligor) of such Property at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned it was acquired (by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment construction or storage of such inventory or other goods;otherwise).
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will not, and the Borrower will not permit any of the Subsidiaries to, directly or indirectly, createCreate, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of its property, assets or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, exceptexcept for:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)securing the Obligations;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in securing the case obligations of Term Loan First Lien Collateral, the Liens of the collateral agent Debtor under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement)Factoring Facility;
(c) pledges or deposits in respect Liens existing as of workers’ compensation lawsthe date hereof, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;approved by Secured Party and listed on Schedule III.
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums taxes not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith by appropriate proceedings, if provided that adequate reserves with respect thereto are maintained on the books of the applicable relevant Loan Party in accordance conformity with GAAP;
(e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing payment liability to insurance carriers under insurance or self-insurance arrangements;
(g) deposits to secure the performance of insurance premiumsbids, leases to which trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the Borrower ordinary course of business;
(h) easements, restrictions (including zoning restrictions), rights-of- way, covenants, licenses, encroachments, protrusions and similar encumbrances and minor title defects affecting real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially interfere with the ordinary conduct of its Subsidiaries is business of the Debtor; and
(i) any interest or title of a party lessor, sublessor, licensor or other similar obligations sublicensor under any lease, sublease, license or letters of credit issued sublicense entered into by the Debtor in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph business and telephone lines and other similar purposes, or zoning or other restrictions as to covering only the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;assets so leased.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Restricted Subsidiary to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, 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 to secure Indebtedness incurred under for property taxes and assessments or governmental charges or levies and Liens securing claims or demands of mechanics, materialmen, vendors, carriers and warehousemen and other like Persons; provided that payment thereof is not at the time required by Section 6.01(b)(xxi)9.4;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateralor resulting from any judgment or award, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent time for the benefit appeal or petition for rehearing of which shall not have expired, or in respect of which the Term Loan Secured Parties (as defined Company or a Restricted Subsidiary shall at any time in the Intercreditor Agreement)good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) pledges Liens incidental to the conduct of business or deposits the ownership of properties and assets (including Liens in respect of workers’ compensation lawsconnection with worker's compensation, unemployment insurance laws and other like laws, maritime, warehousemen's and attorneys' liens, statutory landlords' liens and deposits made to obtain insurance), customary statutory, common law and contractual rights of a bank to set-off claims of such bank against cash on deposit with such bank, and Liens to secure the performance of bids, tenders or similar legislationtrade contracts, or good faith deposits to secure bidsstatutory obligations, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, bonds or deposits as security for contested taxes or import duties or for the payment other Liens of rentlike general nature, in each any such case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s business and mechanics’ Liens, rights not in connection with the borrowing of distraint and other similar Liens, money; provided in each case, for sums the obligation secured is not yet overdue for a period of more than thirty (30) days or or, if overdue, is being contested in good faith by appropriate proceedings actions or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAPproceedings;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(gd) minor survey exceptionsexceptions or minor defects, minor irregularities in title, encumbrances, easements easements, restrictions or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Company 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 Company and its Subsidiaries Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to the ownership another Wholly-owned Restricted Subsidiary;
(f) Liens existing as of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business date of the Borrower Closing and its Subsidiariesdescribed on Schedule 5.15 hereto;
(g) Liens on the capital stock, taken as partnership or other equity interests held, directly or indirectly, by the Company or any Restricted Subsidiary in a wholejoint venture, provided that the proceeds of Indebtedness of the Company or such Restricted Subsidiary secured by such Liens are in their entirety contributed or advanced to such joint venture; provided, further, that (i) at the time of the creation, issuance, assumption, guarantee or incurrence of any such Indebtedness by the Company or any Restricted Subsidiary and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default would exist, (ii) any such Indebtedness, created, issued, assumed, guaranteed or incurred by the Company or any Restricted Subsidiary shall have been created within the applicable limitations of Section 10.6, (iii) with respect to any such Indebtedness neither the Company or any Restricted Subsidiary, nor any of the property or assets of the Company or any Restricted Subsidiary, other than proceeds realized from the sale or other disposition of such capital stock, partnership or other equity interests shall, directly or indirectly, be liable for or secure in any manner whatsoever the payment thereof and (iv) such Indebtedness shall be incurred within the limitations provided in Section 10.4(b) and Section 10.6(b) hereof;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(c)capital stock, partnership or other equity interests held, directly or indirectly, by the Company or any Restricted Subsidiary in a joint venture, provided that the proceeds of Indebtedness created by an Unrestricted Subsidiary or any other Affiliate secured by such Liens are in their entirety contributed or advanced to such joint venture; provided, further, that with respect to any such Indebtedness neither the Company nor any Restricted Subsidiary, nor any of the property or assets of the Company or any Restricted Subsidiary, other than proceeds realized from the sale or other disposition of such capital stock, partnership or other equity interests shall, directly or indirectly, be liable for or secure in any manner whatsoever the payment thereof;
(i) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition or purchase of assets useful and intended to be used in carrying on property the business of the Company or shares a Restricted Subsidiary, so long as such Liens were not incurred, extended or renewed in contemplation of stock such acquisition or purchase; provided that (i) the Lien shall attach solely to the assets acquired or purchased, (ii) such Lien shall have been created or incurred within 180 days of a Subsidiary the date of acquisition or purchase, (iii) at the time of acquisition or purchase of such Subsidiary becomes assets, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such assets, whether or not assumed by the Company or a Subsidiary Guarantor; Restricted Subsidiary, shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition or purchase of such assets (as determined in good faith by the Board of Directors of the Company), (iv) if the Indebtedness secured by such Lien shall have been incurred by a Restricted Subsidiary, then and in such event such Indebtedness shall be incurred within the limitations provided that in Section 10.4(b) and Section 10.6(b) hereof, and (v) at the time of the creation, issuance, assumption, guarantee or incurrence of such Liens are not created or incurred in connection withIndebtedness and after giving effect thereto and to the application of the proceeds thereof, no Default, including, without limitation, a Default under Section 10.4(b), or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any SubsidiaryEvent of Default would exist;
(j) Liens created or incurred after the date of the Closing existing on property such assets at the time of acquisition thereof or at the Borrower time of acquisition or purchase by the Company or a Restricted Subsidiary Guarantor acquired the propertyof any business entity then owning such fixed assets, including any so long as such Liens were not incurred, extended or renewed in contemplation of such acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantorpurchase; provided that (i) the Lien shall attach solely to the assets acquired or purchased, (ii) if the Indebtedness secured by such Liens are not created or Lien shall have been assumed by a Restricted Subsidiary, then and in such event such Indebtedness shall be incurred within the limitations provided in connection withSection 10.4(b) and Section 10.6(b) hereof, and (iii) at the time of the assumption of such Indebtedness and after the concurrent giving effect thereto, no Default, including, without limitation, a Default under Section 10.4(b), or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiaryEvent of Default would exist;
(k) Liens securing Indebtedness created under charters entered into by the Company or other obligations any Restricted Subsidiary in the ordinary course of a Subsidiary owing to its business, as owner or lessor of an asset, creating leasehold interests therein; provided that the Borrower or another Subsidiary creation of such Liens is otherwise permitted to be incurred in accordance with Section 6.01within the terms of this Agreement;
(1l) Liens on specific items created or incurred after the date of inventory the Closing given to secure Indebtedness of the Company or other goods and proceeds any Restricted Subsidiary in addition to the Liens permitted by the preceding clauses (a) through (k) hereof; provided that all Indebtedness secured by such Liens shall have been incurred within the applicable limitations provided in Section 10.6; and
(m) any extension, renewal or refunding of any Loan Party securing such Loan Party’s obligations Lien permitted by the preceding clauses (f) through (k) of this Section 10.7 in respect of bankers’ acceptances issued the same property theretofore subject to such Lien in connection with the extension, renewal or created for refunding of the account Indebtedness secured thereby; provided that (i) such extension, renewal or refunding of the Indebtedness to which such Lien relates shall be without increase in the principal amount remaining unpaid as of the date of such Loan Party extension, renewal or refunding, (ii) such Lien shall attach solely to facilitate the purchasesame such property and (iii) at the time of the extension, shipment renewal or storage refunding of such inventory Indebtedness and after giving effect thereto and to the application of the proceeds thereof, no Default, including, without limitation, a Default under Section 10.4(b), or other goods;Event of Default would exist.
Appears in 1 contract
Sources: Note Purchase Agreement (Oceaneering International Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the its Significant Subsidiaries to, directly or indirectlyincur, create, incur, assume or suffer permit to exist any Lien that secures obligations under on the capital stock or similar Equity Interests of or other ownership interests in any Indebtedness Significant Subsidiary or any Lien on any asset or property of Holdingsits other assets, the Borrower or any Subsidiary now owned or hereafter acquiredowned, except:without effectively providing concurrently therewith to equally and ratably secure the obligations of the Company under this Agreement and the Notes pursuant to documentation in form and substance reasonably satisfactory to the Required Holders, except the following Liens (“Permitted Liens”):
(a) Liens to secure Indebtedness incurred deposits under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation lawsworkmen’s compensation, unemployment insurance laws or similar legislationand social security laws, or good faith deposits to secure the performance of bids, tenders, contracts (other than for the payment repayment of Indebtedness) or borrowed money), leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure obligations, surety or appeal bonds, or deposits as security indemnity, performance or other similar bonds, in the ordinary course of business for contested taxes sums not yet due and payable beyond any applicable grace or import duties cure period or for the payment of rentwhich is not at the time required by Section 9.4;
(b) ▇▇▇▇▇ (other than any Lien imposed by ▇▇▇▇▇) imposed by law, such as carriers’, warehousemen’s or mechanics’ liens, incurred in good faith in the ordinary course of business and securing obligations that are not yet due and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4, and Liens arising out of judgments or awards not exceeding $50,000,000 in the aggregate with respect to which appeals are being prosecuted, execution pending such appeals having been effectively stayed;
(c) the right reserved to, or vested in, any municipality or public authority by the terms of any right, power, franchise, grant, license, or permit, or by any provision of law, to purchase or recapture or designate a purchaser of any property;
(d) any Lien securing a tax, assessment or other governmental charge or levy or the claim of a materialman, mechanic, carrier, warehouseman or landlord for labor, materials, supplies or rentals incurred in the ordinary course of business, in each case, for sums not yet due and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4;
(e) any Lien existing on any property or asset at the time such property or asset is acquired by the Company or any Significant Subsidiary (including acquisition by merger or consolidation), but only if and so long as (1) such ▇▇▇▇ was not created in contemplation of such property or asset being acquired, (2) such Lien is and will remain confined to the property or asset subject to it at the time such property or asset is acquired and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof and (3) such Lien secures only the obligation secured thereby at the time such property or asset is acquired;
(f) any Lien in existence on the date of this Agreement to the extent set forth on Schedule 10.3, but only, in the case of each such Lien, to the extent it secures an obligation outstanding on the date of this Agreement to the extent set forth on such Schedule;
(g) any Lien securing Purchase Money Indebtedness, or to secure payment of all or any part of the cost of construction of improvements as they are incurred or within 270 days thereafter, but only if, in the case of each such Lien, (1) such Lien shall at all times be confined solely to the property or asset the purchase price of which was financed through the incurrence of the Purchase Money Indebtedness secured by such Lien and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof and (2) such Lien attached to such property or asset within 270 days of the acquisition or improvement of such property or asset;
(h) easements, reservations, rights-of-way, restrictions, survey exceptions and other similar encumbrances as to real property which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not interfere in any material respect with the conduct of the business of the Company or any Significant Subsidiary conducted at the property subject thereto;
(i) licenses, leases and subleases of property owned or leased by the Company or any Significant Subsidiary not interfering with the ordinary conduct of the business of the Company and the Significant Subsidiaries;
(j) Liens securing obligations, neither assumed by the Company or any Significant Subsidiary nor on account of which the Company or any Significant Subsidiary customarily pays interest, upon real estate or under which the Company or any Significant Subsidiary has a right-of-way, easement, franchise or other servitude or of which the Company or any Significant Subsidiary is the lessee of the whole thereof or any interest therein for the purpose of locating transmission and distribution lines and related support structures, pipe lines, substations, measuring stations, tanks, pumping or delivery equipment or similar equipment;
(k) Liens arising by virtue of any statutory or common law or contractual provision relating to banker’s liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a depository institution in the ordinary course of business;
(dl) Liens imposed by lawany Lien constituting a renewal, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights extension or replacement of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
Lien permitted under clause (e) Liens for taxes), assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptionsof this Section 10.3, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
but only if (h1) Liens existing on the Closing Date and set forth on Schedule 1.01(c);
(i) Liens on property or shares of stock of a Subsidiary at the time such Subsidiary becomes Lien is granted and immediately after giving effect thereto, no Default or Event of Default would exist and be continuing, (2) such Lien is limited to all or a Subsidiary Guarantor; provided part of the property or asset that was subject to the Lien so renewed, extended or replaced and to improvements thereafter erected on or attached to such Liens are property or asset or any property or asset acquired in substitution or replacement thereof, (3) the principal amount of the obligations secured by such Lien does not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned exceed the principal amount of the obligations secured by the Borrower Lien so renewed, extended or replaced, together with reasonable out-of-pocket expenses and accrued interest with respect to the obligations so renewed, extended or replaced, and (4) the obligations secured by such Lien bear interest at a rate per annum not exceeding the rate borne by the obligations secured by the Lien so renewed, extended or replaced except for any Subsidiary;
(j) Liens on property increase that, in the reasonable opinion of the Company, is commercially reasonable at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantorsuch increase; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;and
(km) other Liens securing Indebtedness or other monetary obligations of a Subsidiary owing the Company or any Significant Subsidiary; provided, that at the time any such Indebtedness or other monetary obligation is incurred (and after giving effect thereto and to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items concurrent repayment of inventory any Indebtedness or other goods monetary obligations with the proceeds thereof), the aggregate principal amount of all Indebtedness and proceeds other monetary obligations then secured pursuant to this clause (m) shall not exceed an amount equal to 15% of Consolidated Capitalization; and provided further that, notwithstanding the foregoing, the Company will not grant any Loan Party Liens securing Indebtedness outstanding under a Principal Credit Agreement pursuant to this Section 10.3(m) unless and until all obligations of the Company under this Agreement and the Notes shall concurrently be secured equally and ratably with such Loan Party’s obligations Indebtedness pursuant to documentation in respect of bankers’ acceptances issued or created for form and substance reasonably satisfactory to the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Required Holders.
Appears in 1 contract
Limitation on Liens. Holdings and Neither the Borrower will not, and the Borrower will not permit Company nor any Material Subsidiary of the Subsidiaries to, directly or indirectlyCompany shall incur, create, incurissue, assume assume, guarantee or suffer to exist otherwise become liable for any indebtedness for money borrowed that 962368.1 is secured by a Lien that secures obligations under any Indebtedness on any asset or property of Holdings, the Borrower or any Subsidiary now owned or hereafter acquired, exceptacquired by it unless the Company or such Material Subsidiary makes or causes to be made effective provisions whereby the Securities issued under this Indenture will be secured by such Lien equally and ratably with (or prior to) all other indebtedness thereby secured so long as any such indebtedness shall be secured. The foregoing restriction does not apply to the following:
(ai) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi)for taxes, assessments or governmental charges or levies on its property if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(dii) Liens imposed by law, such as carriers’, landlords’warehousemen’s, suppliers’materialmen’s, warehousemenworkmen’s, repairmen’s and mechanics’ Liensliens, rights of distraint and other similar Liens (including deposits on pledges to obtain the release of such Liens, ) arising in each case, for sums the ordinary course of business which secure payment of obligations not yet overdue for a period of more than thirty (30) 60 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment past due or which are being contested in good faith by appropriate proceedings, if proceedings and for which adequate reserves shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits required or permitted to qualify the Company or any Subsidiary to conduct business, to maintain self-insurance or to obtain the benefit of any law pertaining to worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(iv) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect thereto are maintained to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in the business of the Company or its Subsidiaries;
(v) Liens incurred in the ordinary course of business securing the performance of bids, trade contracts, leases, statutory obligations, bonds, letters of credit and other similar obligations, and judgment liens to the extent enforcement thereof is effectively stayed, provided that full provision for the payment of all such obligations shall have been made on the books of the applicable Loan Party in accordance with Company or such Subsidiary as may be required by GAAP;
(fvi) banker’s liens and rights of setoff arising by operation of law and contractual rights of ▇▇▇▇▇▇;
(vii) Liens existing on any property of the Company or any Subsidiary (including shares of stock owned by the Company or indebtedness owed to the Company or any Subsidiary) existing as of the date of this Indenture;
(viii) Liens created by Subsidiaries of the Company to secure indebtedness of such Subsidiaries to the Company or to one or more other Subsidiaries of the Company; 962368.1
(ix) Liens affecting property of a Person existing at the time it becomes a Subsidiary of the Company or at the time it merges into or consolidates with the Company or a Subsidiary of the Company or at the time of a sale, lease or other disposition of all or substantially all of the properties of such Person to the Company or its Subsidiaries;
(x) Liens on any property existing at the time of the acquisition thereof or incurred to secure payment of all or a part of the purchase price thereof or to secure indebtedness incurred prior to, at the time of, or within 12 months after the acquisition thereof for the purpose of financing all or part of the purchase price thereof;
(xi) Liens on any property to secure all or part of the cost of improvements or construction thereon or indebtedness incurred to provide funds for such purpose in favor a principal amount not exceeding the cost of issuers such improvements or construction;
(xii) Liens on shares of performance and surety bonds stock, indebtedness or bid bonds other securities of a Person that is not the Company or a Subsidiary of the Company;
(xiii) Liens on or with respect to other regulatory requirements capital leases entered into after the date of this Indenture, provided that such liens extend only to the property or pledges assets that are the subject of such capital leases;
(xiv) Liens on property of the Company or deposits securing payment a Subsidiary in favor of insurance premiums, leases to which the Borrower United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of its Subsidiaries is a party the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other similar obligations payments pursuant to any contract or letters statute or to secure any indebtedness incurred for the purpose of credit issued financing all or any part of the purchase price or the cost of construction of the property subject to such Liens;
(xv) any security interest created in connection with the sale, discount or guarantee of notes, chattel mortgages, leases, accounts receivable, trade acceptances or other paper or contingent repurchase obligations, arising out of sales of merchandise in the ordinary course of its business;
(gxvi) minor survey exceptionsany extension, minor encumbrancessubstitution, easements renewal or reservations ofreplacement of any lien referred to in the foregoing clauses (i) through (xiv) inclusive, or rights of others forany indebtedness secured thereby; provided, licenseshowever, rights-of-waythat the principal amount of indebtedness secured thereby shall not exceed the principal amount of indebtedness so secured at the time of such extension, sewerssubstitution, electric lines, telegraph and telephone lines and other similar purposesrenewal or replacement, or zoning at the time the lien was issued, created or assumed or otherwise permitted, and that such extension, substitution, renewal or replacement lien shall be limited to all or part of substantially the same property which secured the lien extended, renewed or replaced (plus improvements on such property); and
(xvii) other restrictions as to the use of real properties or Liens incidental to the conduct arising in connection with indebtedness of the business of the Borrower Company and its Subsidiaries or to in an aggregate principal amount for the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower Company and its Subsidiaries, taken together with all Attributable Debt with respect to sale and leaseback transactions involving 962368.1 Principal Properties (with the exception of the transactions that are excluded as a whole;
(h) Liens existing on the Closing Date and set forth on Schedule 1.01(cdescribed in Section 10.07);
(i) Liens on property or shares of stock of a Subsidiary , not exceeding at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not lien is issued, created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by assumed 10% of the Borrower or any Subsidiary;
(j) Liens on property at Consolidated Assets of the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Company.
Appears in 1 contract
Sources: Indenture (General Dynamics Corp)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower nor will not it permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset or property of Holdingsits Property, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:except (without duplication):
(a) Liens created pursuant to secure Indebtedness incurred under Section 6.01(b)(xxi)the Security Documents or the Operative Documents;
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); providedin existence on the date hereof and listed in Part B of Schedule I hereto (excluding, thathowever, in following the case of Term Loan First Lien Collateral, the Liens making of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended initial Loans hereunder, Liens securing Indebtedness to be created in favor repaid with the proceeds of the Collateral Agent for the benefit of the Term Loan Secured Parties (such Loans, as defined in the Intercreditor Agreementindicated on said Schedule I);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens any governmental authority for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days due or payable or subject to penalties for nonpayment or which that are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(fd) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiumscarriers', leases to which the Borrower or any of its Subsidiaries is a party warehousemen's, mechanics', materialmen's, repairmen's or other similar obligations or letters of credit issued like Liens arising in the ordinary course of its business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings and Liens securing judgments but only to the extent for an amount and for a period not resulting in an Event of Default under Section 11.01(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewers, electric lines, telegraph and telephone lines restrictions and other similar purposesencumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, or zoning or other easements, licenses, restrictions as to on the use of real properties Property or Liens incidental to minor imperfections in title thereto that, in the aggregate, are not material in amount, and that do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries Company or to the ownership any of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing upon real and/or tangible personal Property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the Closing Date time of its acquisition and set forth on Schedule 1.01(cwas not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; PROVIDED that (i) no such Lien shall extend to or cover any Property of the Company or such Subsidiary other than the Property so acquired and improvements thereon and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the fair market value (as determined in good faith by a senior financial officer of the Company) of such Property at the time it was acquired (by purchase, construction or otherwise);
(i) Liens on property or shares of stock the Property of a Designated Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend securing Indebtedness permitted pursuant to any other property owned by the Borrower or any SubsidiarySection 9.07(e) hereof;
(j) Liens on property at securing the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation Senior Notes that are PARI PASSU with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by in favor of the Borrower or any Subsidiary;Agent and the Lenders under the Security Documents; and
(k) Liens securing Indebtedness or other obligations any Future Synthetic Lease Financing that are PARI PASSU with the Liens in favor of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods Agent and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate Lenders under the purchase, shipment or storage of such inventory or other goods;Security Documents.
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (Cornell Corrections Inc)
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the Subsidiaries Subsidiary to, directly or indirectly, (i) create, incurassume, assume incur or suffer to exist any Lien that secures obligations under upon (or, whether by transfer to any Subsidiary or Affiliate or otherwise, subject, or permit any Subsidiary or Affiliate to subject, to the prior payment of any Indebtedness on other than that represented by the Notes) any asset property or property assets (real or personal, tangible or intangible) of Holdings, the Borrower Company or any Subsidiary Subsidiary, whether now owned or hereafter acquired, exceptor any income or profits therefrom, or (ii) own or acquire or agree to acquire any property or assets (real or personal, tangible or intangible) subject to or upon any Lien; provided, however, that the foregoing restrictions shall not prevent the Company or any Subsidiary from:
(a1) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) making pledges or deposits in respect of workers’ under workmen's compensation laws, unemployment insurance laws or similar legislation, legislation or good faith deposits to secure in connection with bids, tenders, contracts (other than for the payment repayment of Indebtednessmoney borrowed) or leasesunder leases to which the Company or such Subsidiary is a party, or (2) making deposits to secure public or statutory obligations of the Company or such Subsidiary or deposits of cash or U.S. government bonds obligations of the United States of America to secure surety and appeal bonds to which the Company or appeal such Subsidiary is a party or deposits in lieu of such bonds, (3) incurring Liens or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens priorities imposed by law, such as employees', carriers’, landlords’, suppliers’', warehousemen’s 's, labor mechanics', materialmen's and mechanics’ Liensvendors' liens or priorities, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against the Company or such Subsidiary with respect to which the applicable Loan Party Company or such Subsidiary at the time shall then be proceeding with prosecuting an appeal or other proceedings for review, if adequate reserves review and with respect thereto are maintained to which it shall have secured a stay of execution pending such appeal or proceedings for review or (4) entering into leases and from incurring landlords' liens on fixtures and movable property located on premises leased in the books ordinary course of such Loan Party business so long as the rent secured thereby is not in accordance with GAAP;default and any applicable grace period has not expired; or
B. creating, incurring or suffering to exist (e1) Liens for taxes, assessments taxes or other governmental charges or claims import duties not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or the nonpayment of which are being contested in good faith shall be permitted by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
proviso to Section 3.03A or (f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g2) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties, which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Company, in the aggregate materially detract from the value of such properties or Liens incidental to materially impair their use in the conduct operation of the business of the Borrower and its Subsidiaries Company or such Subsidiary; or
C. suffering to exist the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Liens existing on February 26, 1997 securing Indebtedness in an aggregate principal amount outstanding on February 26, 1997 not in excess of $3,000,000, and extensions, renewals or replacements of any such Lien upon the Closing Date and set forth on Schedule 1.01(c);same property theretofore subject thereto without increase in the principal amount of the Indebtedness then secured or evidenced thereby; or
(i) Liens on property or shares of stock D. in the case of a Subsidiary Subsidiary, creating, incurring, assuming or suffering to exist any Lien solely to secure Indebtedness owing to the Company or a Wholly-owned Subsidiary; or
E. creating, incurring, assuming or suffering to exist Liens not otherwise permitted by the foregoing clauses A through D, inclusive, of this Section 4.02; provided, however, that at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created of the creation, incurrence or incurred in connection withassumption thereof, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing and immediately after giving effect to the Borrower Indebtedness secured or another Subsidiary permitted to be incurred in accordance with Section 6.01;
evidenced by any such Lien, (1) Liens on specific items the then outstanding aggregate principal amount of inventory or other goods Priority Indebtedness shall not exceed 25% of Consolidated Net Worth as of the end of the immediately preceding fiscal year of the Company, and proceeds (2) the Company could incur at least $1 of any Loan Party securing such Loan Party’s obligations additional Funded Indebtedness in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;compliance with Section 4.01A.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will The Company shall not, and the Borrower will shall not permit any of the its Subsidiaries to, directly or indirectly, create, incurassume, assume incur or suffer to exist be created, assumed or incurred, any Lien to secure any Debt upon any Principal Property, or on the Capital Stock of any Subsidiary owning a Principal Property, without effectively providing that secures obligations under the Securities (together with, if the Company shall so determine, any Indebtedness on any asset or property of Holdings, the Borrower other indebtedness of the Company or any Subsidiary now owned of its Subsidiaries ranking equally in right of payment with the Securities) shall be secured equally and ratably with (or hereafter acquired, exceptprior to) the Debt so secured for so long as such Debt is so secured. The foregoing obligation shall not apply to:
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims levies if the same shall at the time not yet overdue for a period be delinquent or thereafter may be paid without penalty, or the validity of more than thirty (30) days or payable or subject to penalties for nonpayment or which are is being contested in good faith faith;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens, arising in the ordinary course of business and securing obligations that are not overdue by appropriate proceedingsmore than 30 days or are being contested by the Company or such Subsidiary in good faith;
(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, if adequate reserves unemployment insurance, pensions or other employee benefits and other social security laws or regulations;
(d) any attachment, judgment or other like Liens, unless the judgment it secures shall not, within 60 days after entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of such stay;
(e) other Liens incidental to the normal course of the Company’s and its Subsidiaries’ business or the ownership of their property, including, without limitation, deposits and Liens with respect thereto to the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case which are maintained on the books of the applicable Loan Party in accordance with GAAPnot securing Debt;
(f) Liens in favor easements, zoning restrictions, rights of issuers of performance way, reservations, exceptions, minor encroachments, restrictions and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued encumbrances on real property arising in the ordinary course of its business;
(g) minor survey exceptionsbusiness that do not secure any monetary obligation and that, minor encumbrancesin the aggregate, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to do not materially interfere with the use of real properties or Liens incidental to the ordinary conduct of the business of the Borrower and its Subsidiaries Company’s or to the ownership of their properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the business of the Borrower and its Subsidiaries, ’ business taken as a whole;
(g) licenses, leases or subleases granted to other Persons in the ordinary course of business and not interfering in any material respect with the use of such property by the Company and its Subsidiaries;
(h) customary bankers’ Liens existing and rights of setoff on accounts or deposits arising by operation of law or within the Closing Date and set forth on Schedule 1.01(c)documentation establishing said account;
(i) Liens on property or shares of stock created in favor of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created governmental authority to secure partial, progress, advance or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend contractual payments pursuant to any other property owned by the Borrower agreement or any Subsidiarystatute;
(j) Liens on property at or assets of the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower Company or any Subsidiary Guarantor; provided that such Liens are not created of its Subsidiaries securing Debt owing to the Company or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any another Subsidiary;
(k) Liens on property or assets securing Indebtedness the Debt of the Company or other obligations any Subsidiary as of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01date of this Indenture;
(1l) Liens on specific any Lien created to secure all or part of the purchase price, or to secure Debt (including Capital Leases) incurred or assumed to pay all or any part of the purchase price or cost of construction, of property or assets (or any improvement thereon) acquired or constructed by the Company or a Subsidiary after the date of this Indenture, provided that (i) any such Lien shall extend solely to the item or items of inventory such property or assets (and any improvements thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other goods property (or improvement thereon and proceeds thereof) or asset which is an improvement to or is acquired or constructed property or asset (or improvement thereon) or which is real property being improved by such acquired or constructed property (or improvement thereon), and (ii) any such Lien shall be created contemporaneously with, or within 180 days after, the acquisition or construction of such property or asset;
(m) any Loan Party securing Lien existing on property or assets 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 or asset acquired by the Company or a Subsidiary at the time such Loan Partyproperty or asset is so acquired (whether or not the Debt secured thereby shall have assumed), provided that (i) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s obligations becoming a Subsidiary or such acquisition of property or assets, and (ii) each such Lien shall extend solely to the item or items of property or asset so acquired (and proceeds thereof) and, if required by the terms of the instrument originally creating such Lien, other property or asset which is an improvement to or is acquired for specific use in connection with such acquired property or asset; and
(n) any Lien renewing, extending, replacing or refunding any Lien permitted by foregoing clauses (or this clause (n) in respect of bankers’ acceptances issued any of the foregoing), provided that (1) the principal amount of Debt secured by such Lien immediately prior to such extension, renewal, replacement or created for refunding is not increased and (2) such Lien is not extended to any other property. Notwithstanding the account restrictions in the paragraph above, the Company and its Subsidiaries may create, assume or incur, or suffer to be created, assumed or incurred, Liens that would otherwise require the Company to secure the Securities provided that the aggregate principal amount of such Loan Party to facilitate the purchaseDebt secured thereby, shipment or storage together with the aggregate amount of such inventory or other goods;Attributable Debt of Sale and Leaseback Transactions, does not at the time exceed 20 % of Consolidated Net Tangible Assets.
Appears in 1 contract
Sources: Indenture (Kirby Corp)
Limitation on Liens. Holdings and the Borrower (a) The Obligors will not, and the Borrower will not permit any of the their respective Restricted Subsidiaries to, directly create or indirectly, create, incur, assume or suffer to exist be incurred or to exist, any Lien that secures obligations under any Indebtedness on any asset its or their property of Holdingsor assets, the Borrower or any Subsidiary whether now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or their general creditors, or acquire or agree to acquire, or permit any of their respective Restricted Subsidiaries to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a1) Liens to secure Indebtedness incurred under 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 time required by Section 6.01(b)(xxi)9.4;
(b2) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws resulting from any litigation or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or legal proceeding which are currently being contested in good faith by appropriate proceedings and for which the Obligors or the relevant Restricted Subsidiary shall have set aside on its books, reserves deemed by it to be adequate with respect thereto, unless the judgment they secure shall not have been stayed, bonded or discharged within 60 days;
(3) Liens incidental to the conduct of business or the ownership of properties and assets (including Liens in connection with worker's compensation, 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 trade contracts, or to secure statutory obligations, surety or appeal bonds or other Liens arising out of judgments like general nature, in any such case incurred in the ordinary course of business and not in connection with the borrowing of money, which in any such case would not materially and adversely affect the properties, business, prospects, profits or awards with respect to which condition (financial or otherwise) of the applicable Loan Party shall then be proceeding with an appeal or other proceedings for reviewObligors and their Restricted Subsidiaries, provided in each case, the obligation secured is not overdue or, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxesoverdue, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are is being contested in good faith by appropriate actions or proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party in accordance with GAAP;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g4) minor survey exceptions, exceptions or minor encumbrances, easements or reservations ofreservations, or rights of others for, licenses, for rights-of-way, sewers, electric lines, telegraph and telephone lines utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to properties, which are necessary for the conduct of the activities of the Obligors and their 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 Obligors and its Subsidiaries their Restricted Subsidiaries;
(5) Liens securing Indebtedness of a Restricted Subsidiary to an Obligor in respect of which such Restricted Subsidiary is a Restricted Subsidiary of such Obligor or to another Wholly-owned Restricted Subsidiary of such Obligor;
(6) Liens existing as of the ownership date of their properties, in each case, which were not the Closing and described on Schedule 5.15 hereto;
(7) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with Indebtedness the acquisition or purchase of real or personal property or the cost of construction or improvements to real or personal property, in any such case, useful and which do not intended to be used in the aggregate materially adversely affect carrying on the business of the Borrower and an Obligor or any of its respective Restricted Subsidiaries, taken provided that (i) the Lien shall attach solely to the real or personal property acquired, purchased, constructed or improved, (ii) such Lien shall have been created or incurred within 270 days after the date of acquisition or purchase or the date of completion of construction or improvement of such real or personal property, as a whole;
the case may be, and (hiii) at the time of the imposition of the Lien, the aggregate amount remaining unpaid on all Indebtedness secured by Liens existing on such real or personal property, as the Closing Date and set forth on Schedule 1.01(ccase may be (whether or not assumed by an Obligor or any of its respective Restricted Subsidiaries) shall not exceed an amount equal to the lesser of the total acquisition or purchase price or cost of construction or improvement, as the case may be, or fair market value of such real or personal property (as determined in good faith by the Board of Directors of such Obligor);
(i) 8) Liens affixed on real or personal property or (including without limitation outstanding shares of capital stock and Indebtedness) of a Subsidiary any entity at the time such Subsidiary entity becomes a Restricted Subsidiary Guarantorgiven to secure the payment of the purchase price incurred in connection with the acquisition of such entity by an Obligor or any of its respective Restricted Subsidiaries; provided that (i) the Lien shall attach solely to such Liens are not real or personal property, (ii) such Lien shall have been created or incurred substantially concurrently with such acquisition or purchase, and (iii) at the time of acquisition or purchase of such Restricted Subsidiary, the aggregate amount of Indebtedness secured by Liens on such real or personal property (whether or not assumed by such Obligor or such Restricted Subsidiary) shall not exceed an amount equal to the lesser of the purchase price or fair market value of such real property or such personal property (as determined in connection with, or in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned good faith by the Borrower or any SubsidiaryBoard of Directors of such Obligor);
(j9) Liens affixed on real or personal property existing (i) at the time of acquisition thereof, whether or not the Borrower Indebtedness secured thereby is assumed by an Obligor or a Subsidiary Guarantor acquired any of its respective such Restricted Subsidiaries, or (ii) on the property, including any acquisition by means property or outstanding shares of a merger corporation at the time such corporation is merged into or consolidation consolidated with such Obligor or into such Restricted Subsidiary or at the Borrower time of a sale, lease or any Subsidiary Guarantorother disposition of the properties or outstanding shares or Indebtedness of a corporation or firm as an entirety to such Obligor or such Restricted Subsidiary; provided that the amount of Indebtedness secured by such Liens are shall not exceed an amount equal to the lesser of the acquisition or purchase price or fair market value of such real or personal property (as determined in good faith by the Board of Directors of such Obligor);
(10) Liens created or incurred after the date of the Closing given to secure Indebtedness of an Obligor or Indebtedness of any of its respective Restricted Subsidiaries in connection with, or in contemplation of, such acquisition; provided, further, that addition to the Liens may not extend to any other property owned permitted by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
preceding clauses (1) through (9) hereof, provided that all Indebtedness secured by such new Liens on specific items incurred after the date of inventory the Closing shall have been incurred within the limitations provided in Section 10.4(a)(5); and
(11) any extension, renewal or other goods and proceeds refunding of any Loan Party securing such Loan Party’s obligations Lien permitted by the preceding clauses (5) through (10) of this Section 10.5 in respect of bankers’ acceptances issued the same property theretofore subject to such Lien in connection with the extension, renewal or created for refunding of the account Indebtedness secured thereby; provided that (1) such extension, renewal or refunding of Indebtedness shall be without increase in the principal amount remaining unpaid as of the date of such Loan Party extension, renewal or refunding, (2) such Lien shall attach solely to facilitate the purchasesame such property, shipment or storage and (3) the principal amount remaining unpaid as of the date of such inventory extension, renewal or refunding of Indebtedness is less than or equal to the fair market value of the property (determined in good faith by the Board or Directors of the Obligors) to which such Lien is attached.
(b) In the event that any property, asset or income or profits therefrom is subjected to a Lien not expressly enumerated in this Section 10.5, the Obligors will make or cause to be made provision whereby the Notes will be secured equally and ratably with all other goods;obligations secured thereby and concurrently therewith the Obligors shall furnish to the holders of the Notes documentation reasonably satisfactory to the holders of at least 66-2/3% of the aggregate principal amount of the Notes at the time outstanding, including, but not limited to, an opinion of independent counsel to such effect in scope and form reasonably satisfactory to such holders, and in any case, without limiting the foregoing requirements, if the Obligors fail to make such provision to secure the Notes equally and ratably with such other obligations, the Notes shall in any event have the benefit, to the full extent that, and with such priority as, the holders may be entitled thereto under applicable law, of an equitable Lien securing the Notes on such property, asset, income or profit.
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower The Company will not, and the Borrower will not permit any of the its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under upon any Indebtedness on any asset of their properties, assets (including shares of Capital Stock) or property of Holdingsrevenues, the Borrower or any Subsidiary whether now owned or hereafter acquired, except:except for the following (collectively, "Permitted Exceptions"):
(a) Liens to secure Indebtedness incurred under Section 6.01(b)(xxi);
(b) Liens to secure Indebtedness incurred under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment due or which are being contested in good faith and by appropriate proceedings, proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Loan Party Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen', mechanics', materialmen', repairmen' or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), government contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred and statutory or contractual bankers' Liens on monies held in bank accounts in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower United States for amounts paid by the Company or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its businessas progress payments under government contracts entered into by them;
(g) minor survey exceptionsattachment, minor encumbrances, easements judgment or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their properties, in each case, which were not incurred arising in connection with Indebtedness and which do not court or arbitration proceedings, provided that the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within 30 days or (in the aggregate materially adversely affect the business case of the Borrower and its Subsidiaries, taken as a wholeany execution or enforcement pending appeal) such lesser time during which such appeal may be taken;
(h) Liens existing granted in the ordinary course of business of the Company or any of its Subsidiaries in favor of issuers of documentary or trade letters of credit for the account of the Company or such Subsidiary which support the purchase and/or importation of inventory of the Company and its Subsidiaries, which Liens secure the reimbursement obligations of the Company or such Subsidiary on account of such letters of credit; provided that each such Lien is limited to (i) the Closing Date assets acquired or shipped with the support of such letter of credit and set forth on Schedule 1.01(c)(ii) any assets of the Company or such Subsidiary which are in the care, custody or control of such issuer in the ordinary course of business;
(i) possessory Liens on property in favor of brokers and dealers arising in connection with the acquisition or shares disposition of stock investments of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantortype permitted by subsection 8.7(a)(ii); provided that such Liens are not created or (i) attach only to such investments and (ii) secure only obligations incurred in the ordinary course and arising in connection with, with the acquisition or disposition of such investments and not any obligation in contemplation of, such other Person becoming such a Subsidiary Guarantor; provided, further, that such Liens may not extend to any other property owned by the Borrower or any Subsidiaryconnection with margin financing;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred set forth in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any SubsidiarySchedule 8.2(j);
(k) Liens on the assets of any Foreign Subsidiary securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another such Foreign Subsidiary permitted to be incurred in accordance with Section 6.01hereunder;
(1l) Liens securing Indebtedness in an aggregate amount at any one time outstanding not in excess of $1,000,000 incurred to purchase or finance the purchase of real or personal property; provided that (i) such Liens shall be created substantially simultaneously with the purchase of such property, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (iii) the amount of Indebtedness is not increased and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the purchase price of such property;
(m) Liens on specific items the property or assets of inventory or other goods and proceeds of any Loan Party a corporation which becomes a Subsidiary after the date hereof securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account Indebtedness of such Loan Party Subsidiary permitted by subsection 8.11(f) or Contingent Obligations permitted by subsection 8.3(d), provided that (i) such Liens and Indebtedness or Contingent Obligations existed at the time such corporation became a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to facilitate the purchase, shipment cover any other property or storage assets of such inventory corporation after the time such corporation becomes a Subsidiary, (iii) the amount of Indebtedness or Contingent Obligation secured thereby is not increased and (iv) immediately after giving effect to the acquisition of such corporation, no Default or Event of Default shall have occurred and be continuing; and
(n) any extension, renewal or replacement of the foregoing; provided that the Liens permitted by this paragraph shall not extend to or cover any additional Indebtedness or Property (other goods;than a substitution of like Property).
Appears in 1 contract
Limitation on Liens. Holdings and the Borrower will agrees that it shall not, and the Borrower will not permit any of the its Subsidiaries toshall not, directly or indirectly, make, create, incur, assume or suffer to exist any Lien that secures obligations under upon or with respect to any Indebtedness on any asset or property part of Holdings, their Properties other than the Borrower or any Subsidiary now owned or hereafter acquired, except:following (“Permitted Liens”):
(a) Liens to secure Indebtedness incurred any Lien created under Section 6.01(b)(xxi)the Security Documents or any other Loan Document;
(b) Liens to secure Indebtedness incurred any usual, customary, valid and perfected liens arising under Section 6.01(b)(i); provided, that, in the case of Term Loan First Lien Collateral, the Liens of the collateral agent under the Senior Secured Asset-Based Revolving Credit Agreement shall expressly rank junior to the first-priority security interest intended to be created in favor of the Collateral Agent Oil and Gas leases for the benefit of the Term Loan Secured Parties (as defined in the Intercreditor Agreement);
(c) pledges or deposits in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations or deposits of cash or U.S. government bonds to secure surety or appeal bonds, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers’, landlords’, suppliers’, warehousemen’s and mechanics’ Liens, rights of distraint and other similar Liens, in each case, for sums royalty payments not yet overdue due and payable and reciprocal liens arising under operating agreements for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards with respect to which the applicable Loan Party shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Loan Party in accordance with GAAP;
(e) Liens for taxes, assessments or other governmental charges or claims joint interest ▇▇▇▇▇▇▇▇ not yet overdue for a period of more than thirty (30) days or due and payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings, if which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto with adequate reserves with respect thereto set aside therefor;
(c) Liens for Taxes, fees, assessments or other governmental charges which are maintained on not delinquent or remain payable without penalty, or to the books extent that non-payment thereof is permitted by Section 7.07 or which are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the applicable Loan Party Property subject thereto with adequate reserves set aside therefor;
(d) carrier, warehousemen, mechanic, landlord, materialmen, repairmen or other similar statutory Liens arising in accordance the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto with GAAPadequate reserves set aside therefor;
(e) Liens consisting of pledges or deposits required in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation;
(f) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or pledges or deposits securing payment of insurance premiums, leases to which the Borrower or any of its Subsidiaries is a party or other similar obligations or letters of credit issued in the ordinary course of its business;
(g) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenseseasements, rights-of-way, sewersrestrictions, electric lines, telegraph and telephone lines defects or other exceptions to title and other similar purposes, or zoning or other restrictions as to encumbrances incurred in the use ordinary course of real properties or Liens incidental to the conduct of the business of the Borrower and its Subsidiaries or to the ownership of their propertieswhich, in each casethe aggregate, which were are not substantial in amount, are not incurred in connection with Indebtedness to secure Indebtedness, and which do not in any case materially detract from the aggregate materially adversely affect the business value of the Borrower Property subject thereto or interfere with the ordinary conduct of the businesses of Borrower;
(g) non-recourse purchase money liens for equipment financing in and its Subsidiaries, taken as a wholeaggregate amount at any one time outstanding not to exceed $1,000,000;
(h) Liens existing on arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by Borrower, (ii) Borrower maintains (subject to such right of set-off) dominion and control over such account(s), and (iii) such deposit account is not intended by Borrower to provide cash collateral to the Closing Date and set forth on Schedule 1.01(c);depository institution; and
(i) Liens on property or shares any Lien securing obligations under the Senior Credit Agreement subject to terms of stock of a Subsidiary at the time such Subsidiary becomes a Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary GuarantorIntercreditor Agreement; provided, furtherhowever, that no Lien shall be granted on any Property to secure the Senior Credit Agreement unless a Lien is also being granted on such Liens may not extend Property to any secure the Obligations, this Agreement and the other property owned by the Borrower or any Subsidiary;
(j) Liens on property at the time the Borrower or a Subsidiary Guarantor acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary Guarantor; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Borrower or another Subsidiary permitted to be incurred in accordance with Section 6.01;
(1) Liens on specific items of inventory or other goods and proceeds of any Loan Party securing such Loan Party’s obligations in respect of bankers’ acceptances issued or created for the account of such Loan Party to facilitate the purchase, shipment or storage of such inventory or other goods;Documents.
Appears in 1 contract