Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply to: (a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained; (b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an 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) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute; (j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity; (k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000; (l) 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 such Property or other Property of 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. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under 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 any Subsidiary of Infinity or existing on any property of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, 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;
(hii) Liens 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 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, 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 not apply to any other property of the Borrower or cover any Property Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of Infinity such acquisition or the date such Subsidiary Person becomes a Subsidiary, as the case may be; and (iv) such Liens do not secure Indebtedness other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing DatePermitted Priority Debt;
(m) any Sale/Leaseback of assets of Infinity owned Liens on the Closing Date and listed on Schedule 5.5(m)cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that in respect of operating leases covering only 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 outstandingproperty subject thereto; and
(o) any extension, renewal or replacement Liens in respect 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 such Property or other Property of equivalent value)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. Infinity will Without the consent of the Purchaser, Appia shall not, and will Appia shall not permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that except for the foregoing restrictions shall not apply to:following (hereinafter referred to collectively as “Permitted Liens”):
(a) Liens imposed by any Governmental Authority to secure the Senior Debt or Replacement Senior Debt;
(b) Liens created pursuant to the Security Documents;
(c) Liens for taxes, assessments or charges taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of Appia or its Subsidiaries, as the case may be, in conformity with GAAP;
(bd) statutory landlords’ liens and carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business and imposed without action of such parties for sums 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationoverdue;
(e) judgment Liens created by or resulting from any litigation or legal proceeding provided that such Liens do not also constitute an Event of Default;
(f) pledges or deposits made in the ordinary course of business 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;
(g) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure surety(other than liens arising under ERISA or environmental liens), surety and appeal or bonds, indemnity and performance bonds and contractual bonds, and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fh) Liens consisting of easements, zoning restrictions, flowage rights, rights-of-way, restrictions covenants, conditions, restrictions, reservations, licenses, agreements and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictionsmatters, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, amount and which do not interfere in any material respects case materially detract from the use of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a whole;
(g) Liens on Property of any Subsidiary of Infinity Company 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 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 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, 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) mortgages on Property securing indebtedness in favor of Liens to secure Indebtedness for Purchase Money Indebtedness to the United States of America or any state thereof or any departmentextent that such Indebtedness is permitted under Section 8.1(a); provided, agency or instrumentality or political subdivision of the United States of America or any state thereofhowever, incurred for the purpose of financing all or any part of that (A) each such Lien is given only to secure the purchase price or of the property which is the subject of such Purchase Money Indebtedness, does not extend to any other property, and is given at the time of acquisition of the property; and (B) the Purchase Money Indebtedness secured thereby does not exceed the lesser of the cost of construction such property or its fair market value at the time of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteacquisition;
(j) Liens securing in favor of lessors under Capitalized Leases to the extent that the Capitalized Lease Obligations thereunder is Indebtedness owed permitted under Section 8.1(a); provided, however, that each such Lien extends only to Infinity or the property which is subject of such Capitalized Lease, is given only to any Wholly Owned Subsidiary secure the Capitalized Lease Obligations under such Capitalized Lease, and is given at the commencement date of Infinity;such Capitalized Lease; and
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries incurred in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 propertyextension, and additional Sale/Leasebacks; provided, that the sum of (i) the aggregate principal amount renewal or refinancing of the obligations Indebtedness 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 type described 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"8.3(a)) 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) provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the foregoing; providedIndebtedness being extended, however, that, except to the extent otherwise permitted renewed or refinanced (as may have been reduced by this Section 5.5 (including Section 5.5(n)), the Liens permitted under this paragraph shall any payment thereon) does not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value).increase;
Appears in 3 contracts
Sources: Securities Purchase Agreement (Digital Turbine, Inc.), Securities Purchase Agreement (Mandalay Digital Group, Inc.), Merger Agreement (Mandalay Digital Group, Inc.)
Limitation on Liens. Infinity The Constituent Companies will not, and will not permit any of its Material their Significant Subsidiaries to, incur, create, incur, assume or suffer permit to exist any Lien upon on the capital stock or similar Equity Interests of or other ownership interests in any Significant Subsidiary or any Lien on any of its Propertyother assets, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; providedowned, that without effectively providing concurrently therewith to equally and ratably secure the foregoing restrictions shall not apply to:obligations of the Constituent Companies under this Agreement and, in the case of the Company, the Notes pursuant to documentation in form and substance reasonably satisfactory to the Required Holders, except the following Liens (“Permitted Liens”):
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workmen’s compensation, unemployment insurance and other social security legislation;
(e) pledges laws, or deposits to secure the performance of bids, trade tenders, contracts (other than for the repayment of borrowed money), leases, statutory obligations to secure suretyobligations, surety or appeal bonds, or indemnity, performance bonds or other similar bonds, in the ordinary course of business for sums not yet due and contractual and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4;
(b) Liens (other obligations of a like nature 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 involving yet due and payable beyond any applicable grace or cure period or the borrowing payment of moneywhich 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 restrictions, survey exceptions and other similar encumbrances incurred as to real property which customarily exist on properties of corporations engaged in the ordinary course of business similar activities and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, similarly situated and which do not interfere in any material respects 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 Infinity the Constituent Company 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Significant 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity obligations, neither assumed by a Constituent Company or to any Wholly Owned Significant Subsidiary nor on account of Infinitywhich 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 (i) upon 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 receivables and inventory ordinary course 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000business;
(l) Sale/Leasebacks consummated prior any Lien constituting a renewal, extension or replacement of a Lien permitted under clause (e), (f) or (g) of this Section 10.3, but only if (1) at the time such 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 part of the property or asset that was subject to the Closing Date;
Lien so renewed, extended or replaced and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof, (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 (i3) the aggregate principal amount of the obligations secured by such Liens (other than Indebtedness as defined in clause (f) Lien does not exceed the principal amount of the definition thereof which has not been assumed obligations secured by Infinity or any of its Subsidiaries and where the Lien relates so renewed, extended or replaced, together with reasonable out-of-pocket expenses and accrued interest with respect to Property acquired the obligations so renewed, extended or replaced, and (4) the obligations secured by Infinity 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 of its Subsidiaries in satisfaction, in whole or in part, of indebtedness to Infinity or any of its Subsidiariesincrease that, in the ordinary course reasonable opinion of business (any the relevant Constituent Company, is commercially reasonable at the time of 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 outstandingincrease; and
(om) other Liens securing Indebtedness or other monetary obligations of a Constituent Company or any extension, renewal or replacement of the foregoingSignificant Subsidiary; provided, howeverthat at the time any such Indebtedness or other monetary obligation is incurred (and after giving effect thereto and to the concurrent repayment of any Indebtedness or other monetary obligations with 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, except notwithstanding the foregoing, neither Constituent Company will grant any Liens securing Indebtedness outstanding under a Principal Credit Agreement pursuant to this Section 10.3(m) unless and until all obligations of the Constituent Companies under this Agreement and, in the case of the Company, the Notes shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation in form and substance reasonably satisfactory 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 such Property or other Property of equivalent value)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. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in the ordinary course of business which taxes that are not overdue for a period of more than 30 days thirty (30) days, Liens for taxes not required to be discharged pursuant to Section 5.5 or which Liens with respect to taxes, assessments or other governmental charges or levies that are being contested in good faith and by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of Holdings, the Borrower or the Restricted Subsidiaries, as the case may be, to the extent required by GAAP and Liens for property taxes on property that the Borrower or any of its Subsidiaries has determined to abandon (so long as such abandonment is not prohibited by this Agreement or any of the other Loan Documents), if the sole recourse for such tax is to such property;
(b) judgment Liens so long as the related judgment does not constitute an Event of Default;
(c) statutory or common law Liens securing judgments of landlords, banks and securities intermediaries (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) of the Code), in each case incurred in the ordinary course of business (i) for amounts not yet overdue or to perfect an appeal (ii) for amounts that are overdue and that (in the case of any order or decree but only to the extent, for an amount and such amounts overdue for a period not resulting in an Event excess of Default under paragraph (h30 days) of Article VIare being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;
(d) pledges restrictions, covenants, land use contracts, rent charges, building schemes, declarations of covenants, conditions and restrictions, servicing agreements in favor of any Governmental Authority, easements, rights-of-way, encroachments, servitudes and other minor defects or deposits under worker's irregularities in title or other similar rights in or with respect to real property (including open space and conservation easements, restrictions or similar agreements and rights of way and servitudes for railways, water, sewer, drainage, gas and oil pipelines, electricity, light, power, telephone, telegraph, internet or cable television services and utilities) granted to or reserved by other persons or properties, incurred in the ordinary course of business, which in the aggregate do not materially impair the use of or the operation of the business of such person or the property subject thereto;
(i) the right reserved to or vested in any Governmental Authority, by the terms of any Permit acquired by such Person or by any Law, to terminate any such Permit or to require annual or other payments as a condition to the continuance thereof, (ii) any security given to a public authority or other service provider or any other Governmental Authority when required by such utility or other Governmental Authority in connection with the operations of such person in the ordinary course of its business and (iii) the reservations, limitations, provisos and conditions, if any, expressed in any grants from any Governmental Authority or any similar authority;
(f) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation;
(e) pledges security, or deposits to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;
(g) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(h) any agreement to lease (including operating leases), option to lease, license, sub-lease or other right of occupancy assumed or entered by or on behalf of any NM Group Member in the ordinary course of its business or interests of lessors under operating leases and non-exclusive licensors under license agreements;
(i) Liens described on Schedule 6.3(i);
(j) Liens securing Indebtedness of the Borrower or any Restricted Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets in an aggregate amount not to exceed (as of the date any such Lien is incurred) the greater of (x) $15,000,000 and (y) 1.50% of Total Assets at any time outstanding, provided that such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness; provided further that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender
(k) Liens on property or other assets at the time the Borrower or a Restricted Subsidiary acquired the property or such other assets, including any acquisition by means of a merger, amalgamation or consolidation with or into the Borrower or any Restricted Subsidiary, securing obligations in an aggregate amount (together with any Indebtedness that is secured pursuant to clause (m)) not to exceed (as of the date any such Lien is incurred) $15,000,000; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, amalgamation, merger or consolidation; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary (other than after-acquired property that is (i) affixed or incorporated into the property covered by such Lien and (ii) the proceeds and products thereof);
(l) (i) Liens created pursuant to the Loan Documents, (ii) Liens securing any Replacement Loans, (iii) Liens securing any Incremental Commitments incurred in accordance with Section 2.24, (iv) Liens securing any Extended Term Loans or Extended Revolving Credit Commitments, (v) Liens securing any Refinancing Indebtedness with respect to the foregoing and (vi) Liens on cash collateral to Cash Collateralize the Letters of Credit or any other Obligation; provided that, in each case, such Liens are no greater than pari passu with the Liens under this Agreement and on the Collateral;
(m) Liens securing Indebtedness of any NM Group Member incurred pursuant to Section 6.2(e) in an aggregate amount (together with any obligations that are secured pursuant to clause (k)) not to exceed (as of the date any such Lien is incurred) $10,000,000; provided that, such Liens do not at any time encumber any Property other than the Property (including Capital Stock of any entity acquired and any of the Restricted Subsidiaries) acquired in such Acquisition;
(n) any right of set-off, refund or charge-back available to any bank or other financial institution or any other Lien arising in connection therewith or relating to purchase orders and other agreements entered into with customers of Holdings or any of its Subsidiaries in the ordinary course of business and Liens of a collection bank arising under Sections 4-208 and 4-210 of the UCC on the items in the course of collection;
(o) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by any Loan Party or any Subsidiary thereof in the ordinary course of its business and covering only the assets so leased, licensed or subleased;
(p) Liens arising solely from precautionary UCC financing statements or similar filings;
(q) any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
(r) other Liens on assets securing obligations in an aggregate amount not to exceed (as of the date any such Lien is incurred) the greater of (x) $15,000,000 and (y) 1.50% of Total Assets at any time outstanding;
(s) assignments of past due receivables solely for borrowed money), leases, statutory the purpose of collection;
(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) Liens securing obligations relating to secure surety, appeal any Indebtedness or performance bonds and contractual and other obligations of a like nature Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 6.2;
(v) Liens in favor of any Loan Party;
(w) [Reserved];
(x) [Reserved];
(y) Liens on Property subject to an agreement to Dispose of such Property permitted under Section 6.5;
(z) Liens on amounts deposited to secure Holdings’ and its Subsidiaries obligations in connection with the making or entering into of bids, tenders, or leases in the ordinary course of business and not involving in connection with the borrowing of money;
(faa) easementsLiens on amounts deposited to secure Holdings’ and its Subsidiaries reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary course of business;
(bb) licenses of content or non-exclusive licenses of patents, rights-of-waytrademarks, copyrights, or other intellectual property rights in the ordinary course of business;
(cc) Liens that are extensions, replacements or renewals of Liens permitted under this Section 6.3 (or successive extensions, renewals or replacements) to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the Liens so extended, renewed or replaced only encumber those assets that secured the original Indebtedness (plus improvements on such property);
(dd) restrictions and on transfers of securities imposed by applicable securities laws or agreement (other similar encumbrances incurred than Capital Stock pledged pursuant to the Security Documents);
(ee) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) in the ordinary course of business and encumbrances consisting pursuant to the terms of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto any lease and Liens under or rights reserved in any lease for rent or for compliance with the terms of such lease;
(ff) licenses (with respect to intellectual property and other property), leases or subleases granted to third parties to the extent permitted by the applicable terms of the Security Documents and subleases which, in the aggregate, are not material in amount, and which do not interfere interfering in any material respects respect with the ordinary conduct of the business of Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity Holdings or any of its Subsidiaries to secure Indebtedness or resulting from financings in a material diminution in the value of such receivables and inventory in an aggregate amount not greater than $400,000,000 less the aggregate amount collateral so licensed, leased or subleased;
(gg) Liens arising out of Indebtedness that is secured pursuant to clause (ii) below; providedconditional sale, that the terms title retention, consignment or similar arrangement for sale of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity goods entered into by Holdings or 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 ordinary course of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000business permitted by this Agreement;
(lhh) Sale/Leasebacks consummated prior Liens consisting of reasonable customary initial deposits and margin deposit and similar Liens attaching 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 (commodity trading accounts or 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, brokerage accounts maintained 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 outstandingfor speculative purposes; and
(oii) ground leases in respect of real property on which facilities owned or leased by the Borrower or 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 such Property or other Property of equivalent value)its Subsidiaries are located.
Appears in 3 contracts
Sources: Credit Agreement (New Media Investment Group Inc.), Credit Agreement (New Media Investment Group Inc.), Credit Agreement (New Media Investment Group Inc.)
Limitation on Liens. Infinity Neither the Borrower nor any Subsidiary will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the books of the Borrower or any Subsidiary in accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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 the Borrower or any Subsidiary 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 the Borrower or any Subsidiary in accordance with GAAP;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholethe Borrower or any Subsidiary;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of the Borrower or any Subsidiary or the use thereof or the rights and interests of Infinity the Borrower or any Subsidiary therein, in any manner under any and all Laws;
(i) rights reserved to the grantors of any properties of the Borrower or any Subsidiary, 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 any Subsidiary or existing on any property of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity becoming a Subsidiary, (ii) such Lien shall not apply to any other property of the Borrower or any Subsidiary thereofSubsidiary, (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, were ; and (iv) such Liens do not created in anticipation thereof secure Indebtedness 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing DatePermitted Priority Debt;
(m) any Sale/Leaseback of assets of Infinity owned Liens on the Closing Date and listed on Schedule 5.5(m)cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that in respect of operating leases covering only 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 outstandingproperty subject thereto; and
(o) any extension, renewal or replacement Liens in respect 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 such Property or other Property of equivalent value)Permitted Priority Debt.
Appears in 3 contracts
Sources: 364 Day Term Loan Agreement (Energy Transfer Partners, L.P.), Credit Agreement (Energy Transfer Partners, L.P.), 364 Day Term Loan Agreement (Energy Transfer Equity, L.P.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or claims not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of the applicable Loan Party, to the extent required by GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, suppliers’ repairmen's, architects' ’s or other like Liens arising in the ordinary course of business for amounts which are not overdue for a period of more than 30 days or which that are being contested in good faith and by appropriate proceedingsproceeding (and, in any event, there has been no commencement of the sale of any portion of the Collateral on account of such Lien); provided, that adequate reserves with respect thereto are maintained on the books of the applicable Loan Party, to the extent required by GAAP;
(c) Liens securing judgments arising in connection with workers’ compensation, unemployment insurance, old age pensions and social security benefits or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIother similar benefits;
(d) pledges or Liens incurred on deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges or deposits made to secure the performance of bids, tenders, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, appeal or performance bonds bonds, indemnities, release bonds, fee and contractual expense arrangements with trustees and fiscal agents and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, covenants, rights-of-way, restrictions restrictions, subdivisions, parcelizations, encroachments and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or other minor imperfections defects and irregularities in title thereto and Liens under leases and subleases whichthat, in the aggregate, are not material substantial in amount, and which do not interfere in any material respects with case materially detract from the ordinary conduct value of the business of Infinity Real Estate including, without limitation, those matters set forth on any title policy provided to the Administrative Agent subsequent to the Amended and its Subsidiaries taken as a wholeRestated Effective Date with respect to Real Estate acquired subsequent to the Amended and Restated Effective Date;
(gf) 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 on 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 Amended and are not spread to cover any Property other than the Property covered at the time of the relevant transaction;
(h) Liens 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 Restated Effective Date listed 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, all or a part of the cost (including the cost of construction) of such Property or improvements thereonSchedule 7.3(f); provided, that no such Lien shall extend is spread to or cover any additional Property of Infinity or such Subsidiary (other than proceeds of the respective Property so acquired sale or other disposition thereof) after the Amended and improvements thereonRestated Effective Date;
(g) Liens created pursuant to the Security Documents or otherwise securing the Obligations (including Liens created thereunder securing Specified Hedge Agreements);
(h) leases and subleases in each case permitted under the Loan Documents, and any leasehold mortgage in favor of any party financing the lessee under any such lease or sublease; provided, that no Loan Party is liable for the payment of any principal of, or interest, premiums or fees on, such financing;
(i) mortgages on Property securing indebtedness in favor of Liens created by the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteGolf Course Lease;
(j) Liens securing Indebtedness owed permitted under Section 7.2(c); provided that such Liens attach only to Infinity the Aircraft, the beneficial interest of any trust which owns the Aircraft and/or such Loan Party that either directly owns the Aircraft or to owns the beneficial interest in any Wholly Owned Subsidiary trust that owns the Aircraft (in the case of Infinityany such Loan Party, so long as such Loan Party owns no material Property other than the Aircraft and/or the beneficial interest of any such trust) and any proceeds thereof;
(k) Liens (i) upon the receivables and inventory of Infinity or any of its Subsidiaries to secure securing 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000permitted under Section 7.2(f)(ii);
(l) Sale/Leasebacks consummated prior Liens in respect of an agreement to Dispose of any Property, to the Closing Dateextent such Disposition is permitted by Section 7.4 or 7.5;
(m) so long as the Disbursement Agreement is in effect, any Sale/Leaseback of assets of Infinity owned on “Permitted Liens” as defined under the Closing Date and listed on Schedule 5.5(m)Disbursement Agreement;
(n) additional Liens upon real and/or personal propertyany attachment, and additional Sale/Leasebacks; providedjudgment, that the sum writs or warrants 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 such Property attachment or other Property similar Liens not constituting an Event of equivalent valueDefault under Section 8.1(h).;
Appears in 2 contracts
Sources: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Resorts LTD)
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under 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 any Subsidiary of Infinity or existing on any property of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, 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;
(hii) Liens 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 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, 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 not apply to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor property of the United States of America Borrower or any state thereof Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or any departmentthe date such Person becomes a Subsidiary, agency or instrumentality or political subdivision 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 United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured amount permitted by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing DateSection 7.02(m);
(m) Liens securing Indebtedness permitted by Section 7.01(f), (g) or (h); provided that such Liens do not secure Indebtedness which together with (but without duplication) all Indebtedness secured by Liens permitted under Section 7.02(l) in excess of a principal amount at any Sale/Leaseback one time of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m)$35,000,000;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that on cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(o) Liens in respect of operating leases covering only 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 outstandingproperty 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) any extensionabove shall be permitted on the Equity Interests of ETP, renewal ETP GP 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 such Property or other Property of equivalent value)ETP LLC.
Appears in 2 contracts
Sources: Credit Agreement (Energy Transfer Equity, L.P.), Credit Agreement (Energy Transfer Equity, L.P.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or and governmental charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of the applicable Group Member in conformity with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which that are being contested in good faith and 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislation;
(ed) pledges deposits by or deposits 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 to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and business, so long as the aggregate amount of deposits at any one time outstanding securing appeal bonds does not involving the borrowing of moneyexceed $5,000,000;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on any Liens permitted or excepted in the use of Property or minor imperfections in title thereto and Liens under leases and subleases whichMortgages that, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of Infinity the Group Members;
(f) Liens in 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 its Subsidiaries taken as a wholethat the amount secured thereby is not increased;
(g) Liens on Property securing Indebtedness 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 Group Member incurred pursuant to Section 7.2(c) to finance the purchase thereof and are 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 spread to cover at any time encumber any Property other than the Property covered at financed by such Indebtedness, (iii) the time amount of Indebtedness secured thereby is not increased and (iv) the amount of Indebtedness initially secured thereby is not more than 100% of the relevant transactionpurchase price of such fixed or capital asset;
(h) Liens 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 created pursuant to 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, 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 thereonSecurity Documents;
(i) mortgages on Property securing indebtedness any interest or title of a lessor under any lease entered into by any Group Member in favor the ordinary course of its business and covering only the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteassets so leased;
(j) Liens securing Indebtedness owed to Infinity or to advance deposits (including extension payments) arising after the Closing Date in connection with any Wholly Owned Subsidiary of InfinityInvestment permitted by Section 7.8(g);
(k) Liens (i) upon on the receivables and inventory property or assets of Infinity a Person which becomes a Subsidiary of a Borrower after the Closing Date, or is acquired by a Borrower or any of its Subsidiaries to secure after the Closing Date, securing Indebtedness resulting from financings permitted by Section 7.2(f); provided that (i) such Liens existed at the time such Person became a Subsidiary of a Borrower, (ii) such receivables Liens were not granted in connection with or in contemplation of the applicable Permitted Acquisition and inventory in an aggregate amount not greater than $400,000,000 less (iii) the aggregate amount of Indebtedness that secured thereby is secured pursuant to clause (ii) below; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary increased (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries as expressly provided in connection with such financings and other recourse customary in connection with "off-balance sheet" financingsSection 7.2(f)) and such Liens are not expanded to cover additional Property (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater other than $125,000,000proceeds thereof);
(l) Sale/Leasebacks consummated prior to the Closing Date;Liens on unearned premiums in respect of insurance policies securing insurance premium financing permitted under Section 7.2(k); and
(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 not otherwise permitted by this Section 7.3 so long as neither (i) the aggregate outstanding 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 thereby nor (ii) the aggregate Sale/Leaseback Attributable Debt with respect to fair market value (determined, in the case of each such Sale/Leasebacks shall not exceed Lien, as of the date such Lien is incurred) of the assets subject thereto exceeds $125,000,000 5,000,000 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 such Property or other Property of equivalent value)time.
Appears in 2 contracts
Sources: Credit Agreement (Waste Services, Inc.), Credit Agreement (Waste Services, Inc.)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries to, createdirectly or indirectly, incur, assume create or suffer to exist incur any Lien of any kind upon any of its Propertyproperty or assets (including any intercompany notes, but excluding any inventory held on consignment), now owned or acquired after the date of the Indenture, or enter into any Sale/Leaseback income or profits therefrom, except if the Securities are directly secured equally and ratably with (or prior to in the case of Liens with respect to any Subordinated Indebtedness) the obligation or liability secured by such PropertyLien, whether now owned or hereafter acquired; providedexcluding, that however, from the operation of the foregoing restrictions shall not apply toany of the following:
(a) Liens imposed Any Lien existing as of the date of the Indenture, as set forth on a schedule to the Indenture.
(b) Any Lien arising by reason of (1) any Governmental Authority judgment, decree or order of any court, so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for taxesthe review of such judgment, assessments decree or charges order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; (2) taxes not yet due and payable delinquent or which are being contested in good faith; (3) good faith deposits in connection with tenders, leases, contracts (other than contracts for the payment of money); (4) zoning restrictions, easements, licenses, reservations, title defects, rights of others for rights of way, utilities, sewers, electric lines, telephone or telegraph lines, and by appropriate proceedings if adequate reserves other similar purposes, provisions, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect thereto are maintained;
to leasehold interest, mortgages, obligations, liens and other -97- 104 encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), none of which materially impairs the use of any parcel of property material to the operation of the business of the Company or any Subsidiary or the value of such property for the purpose of such business; (b5) carriers'deposits to secure public or statutory obligations, or in lieu of surety or appeal bonds; or (6) operation of law in favor of landlords, mechanics, materialmen, warehousemen's, mechanics'carriers, materialmen'slaborers, repairmen'semployees or suppliers, architects' or other like Liens arising incurred in the ordinary course of business for sums which are not overdue for a period of more than 30 days yet delinquent or which are being contested in good faith and or negotiations or by appropriate proceedings;proceedings which suspend the collection thereof.
(c) Liens Any Lien on property of the Company or any Subsidiary securing judgments or to perfect an appeal of any order or decree but only to Indebtedness incurred by the extent, for an amount and for a period not resulting in an Event of Default Company under paragraph subclause (hi) of Article VI;the definition of Permitted Indebtedness.
(d) pledges Any Lien securing Acquired Indebtedness created prior to (and not created in connection with, or deposits under worker's compensation, unemployment insurance and other social security legislation;in contemplation of) the incurrence of such Indebtedness by the Company or any Subsidiary.
(e) pledges or deposits Any Lien to secure the performance of bids, trade contracts contracts, leases (other than for borrowed moneyincluding without limitation, statutory and common law landlord's liens), leasesstatutory obligations, statutory obligations to secure suretysurety and appeal bonds, appeal or performance bonds and contractual letters of credit and other obligations of a like nature and incurred in the ordinary course of business of the Company and not involving the borrowing of money;any Subsidiary.
(f) easements, rights-of-way, restrictions Any Lien securing Indebtedness permitted to be incurred pursuant to clauses (vi) and other similar encumbrances incurred in (ix) of the ordinary course definition of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, "Permitted Indebtedness" and which do is not interfere prohibited to be incurred under the provisions described in any material respects with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a whole;Section 10.8.
(g) Liens Any Lien on Property of any Subsidiary of Infinity trucks owned or of any Person which is leased by the Company, or was merged incurred by the Company in connection 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;or lease thereof.
(h) Liens 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 time of its acquisition and was not created in anticipation thereof or (B) was created solely for the purpose of Any Lien securing Indebtedness representing, or incurred to finance, refinance or refund, all or effect a part defeasance of the cost (including Securities pursuant to the cost defeasance provisions 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;Indenture.
(i) mortgages on Property Any Lien securing indebtedness in favor of the United States of America Indebtedness permitted to be incurred under Interest Rate Agreements or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or otherwise incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;hedge interest rate risk.
(j) Liens securing Indebtedness owed to Infinity Any extension, renewal, refinancing or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 satisfactionreplacement, in whole or in part, of indebtedness to Infinity or any of its Subsidiaries, lien described in the ordinary course of business foregoing clauses (any such Indebtedness, "Specified Section 5.5(na) Indebtedness")through (i) 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 so long as no additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)collateral is granted as security thereby.
Appears in 2 contracts
Sources: Indenture (Di Giorgio Corp), Indenture (Di Giorgio Corp)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries Restricted Subsidiary to, directly or indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien upon any of its Property, on or enter into any Sale/Leaseback with respect to any such Propertyproperty, asset or revenue (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired; provided, that or assign or otherwise convey any right to receive any income (unless it makes, or causes to be made, effective provision whereby the foregoing restrictions shall not apply toNotes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to documentation reasonably satisfactory to the Required Holders such Liens being herein referred to as (“Equal and Ratable Liens”)), except:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges that are not yet due and payable or the payment of which are being contested in good faith and is not at the time required by appropriate proceedings if adequate reserves with respect thereto are maintainedSection 9.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers'’, warehousemen's’s, mechanics'’, materialmen's, repairmen's, architects' or ’s and other like similar Liens arising in the ordinary course of business for sums which are not overdue for a period of more than 30 days or which are being contested by the Company or a Subsidiary on a timely basis in good faith and by in appropriate proceedings;
(c) proceedings and for which the Company or such Subsidiary has established reserves in accordance with GAAP on the books of the Company or such Subsidiary), Liens securing judgments to secure the performance of bids, tenders, leases or trade contracts or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default secure statutory obligations (including obligations under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workers 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, surety or appeal or performance bonds and contractual and other obligations of a like nature Liens incurred in the ordinary course of business business, including deposits securing reimbursement obligations under trade letters of credit, and not involving in connection with the borrowing of money;
(fc) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property charges or minor imperfections in title thereto and Liens under leases and subleases whichencumbrances, in each case incidental to the aggregate, are not material in amount, and which do not interfere in any material respects with ownership of property or assets or the ordinary conduct of the business of Infinity the Company or any Restricted Subsidiary, and its Subsidiaries taken as Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(d) 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;
(e) Liens securing Debt of a wholeRestricted Subsidiary to the Company or to another Restricted Subsidiary;
(f) Liens existing on the Closing Date and reflected in Schedule 10.4;
(g) Liens incurred after the Closing Date given to secure the payment of the purchase price incurred in connection with the acquisition, construction or improvement of property (other than accounts receivable or inventory) useful and intended to be used in carrying on Property the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or improvement thereon 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 Subsidiary Lien incurred within 365 days of Infinity such acquisition or completion of any Person which is such construction or was merged with improvement, at the time of the incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or into Infinity not assumed by the Company or any Subsidiary thereof; provideda Restricted Subsidiary, that shall not exceed the lesser of (i) the cost of such Liens are acquisition, construction or were in existence improvement or (ii) the fair market value at the time such Person becomes property is acquired or became a Subsidiary constructed or improvement of Infinity or such Person merged with or into Infinity or any Subsidiary thereofproperty is completed, as the case may be, were not created (as determined 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 good faith by one or more officers of the relevant transaction;
(h) Liens upon real and/or personal property acquired (Company or such Restricted Subsidiary to whom authority to enter into the transaction has been delegated by purchase, construction, foreclosure, deed in lieu the Board of foreclosure or otherwise) by Infinity 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 finance, refinance or refund, all or a part Directors 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 Company or such Subsidiary other than the respective Property so acquired and improvements thereon;
Restricted Subsidiary), (i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 (i3) the aggregate principal amount of the obligations all Debt secured by such Liens would be permitted by the limitation set forth in Section 10.1 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;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the 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 Debt 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 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 than Indebtedness as defined property which is an improvement to or is acquired for specific use in clause connection with such acquired property, (3) the aggregate principal amount of all Debt secured by such Liens would be permitted by the limitation set forth in Section 10.1 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 assets subject to any receivables facility permitted pursuant to Section 10.3 securing obligations of the Company and its Restricted Subsidiaries in respect of such receivables facility;
(j) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (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")g) and (iih) of this Section 10.4; provided that (1) no additional property shall be encumbered by such Liens, (2) the aggregate Sale/Leaseback Attributable unpaid principal amount of the Debt with respect to such Sale/Leasebacks or other obligations secured thereby shall not exceed $125,000,000 be increased or the maturity thereof reduced and (3) at any one such time outstandingand immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(ok) any extension, renewal or replacement of the foregoing; provided, however, that, except to the extent other Liens not otherwise permitted by paragraphs (a) through (j), inclusive, of this Section 5.5 10.4 securing Debt; provided that (including 1) the aggregate principal amount of all Debt secured by such Liens shall be permitted by the limitations set forth in Section 5.5(n))10.1 and Section 10.2, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (3) no such Liens permitted under incurred pursuant to this paragraph (k) shall not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)secure Debt outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Perkinelmer Inc), Note Purchase Agreement (Perkinelmer Inc)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of Bermuda Holdings or the relevant Subsidiary, as the case may be, in accordance with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, landlords’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business in respect of obligations which are not overdue for a period of more than 30 days yet due or which are bonded or which are being contested in good faith and by appropriate proceedingsproceedings if adequate reserves with respect thereto are maintained on the books of Bermuda Holdings or the relevant Subsidiary, as the case may be, in accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workmen’s compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, tenders, trade or government contracts (other than for borrowed money), leases, licenses, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easementseasements (including, without limitation, reciprocal easement agreements), rights-of-way, restrictions building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, changes, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially detract from the aggregate value of the properties of Bermuda Holdings and its Subsidiaries, taken as a whole, or in the aggregate materially interfere with or adversely affect in any material respect the ordinary conduct of the business of Bermuda Holdings and its Subsidiaries on the properties subject thereto, taken as a whole;
(f) Liens in favor of the Administrative Agent, the Lenders and the Lender Counterparties pursuant to the Credit Documents, including Liens pursuant to the Credit Documents in respect of Swap Agreements and cash management or similar arrangements, and bankers’ liens arising by operation of law;
(g) Liens on property of Bermuda Holdings or any of its Subsidiaries created solely for the purpose of securing (i) Indebtedness not exceeding $15,000,000 in aggregate amount at any time outstanding permitted by subsection 7.1(h) (so long as such Lien applies only to the property of the relevant Foreign Subsidiaries) or (ii) Indebtedness permitted by subsection 7.1(i) representing or incurred to finance, refinance or refund the purchase price of property; provided that no such Lien incurred in connection with Indebtedness pursuant to subsection 7.1(a) or 7.1(h) shall extend to or cover other property of Bermuda Holdings or such Subsidiary other than the respective property so acquired, and the principal amount of Indebtedness secured by any such Lien shall at no time exceed the original purchase price of such property;
(i) mortgages, liens, security interests, restrictions, encumbrances or any other matter of record that have been placed by any developer, landlord or other third party on property over which Bermuda Holdings or any of its Subsidiaries has easement rights or on any real property leased by Bermuda Holdings or any of its Subsidiaries and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(i) Liens in connection with worker’s compensation obligations and general liability exposure of Bermuda Holdings and its Subsidiaries;
(j) Liens on goods (and proceeds thereof) financed with drawings under commercial letters of credit securing reimbursement obligations in respect of such commercial letters of credit issued in accordance with the terms of this Agreement;
(k) Liens incurred in the ordinary course of business of Bermuda Holdings or any of its Subsidiaries with respect to obligations (other than Indebtedness) not exceeding $5,000,000 at any one time outstanding and encumbrances consisting that do not in the aggregate materially detract from the value of zoning restrictions, easements, licenses, restrictions on the property or materially impair the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, thereof in the aggregate, are not material in amount, and which do not interfere in any material respects with the ordinary conduct operation of the business of Infinity and its Subsidiaries taken as a wholeby Bermuda Holdings or such Subsidiary;
(gl) any provision for the retention of title to an asset by the vendor or transferor of such asset which asset is acquired by Bermuda Holdings or any of its Subsidiaries in a transaction entered into in the ordinary course of business of Bermuda Holdings or such Subsidiary;
(m) judgment Liens arising as a result of any litigation or legal proceeding; provided that such Lien is released on or prior to the earlier of (i) 90 days following the date on which such Lien arises and (ii) the date such judgment shall have been vacated, discharged, stayed or bonded pending appeal;
(n) Liens on Property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity or any Subsidiary thereofthe Collateral securing Indebtedness permitted by subsection 7.1(c) and subsection 7.1(j); provided, provided that such Liens are or were subordinated to the Liens securing the Obligations in existence at accordance with the time such Person becomes or became a Subsidiary terms of Infinity or such Person merged with or into Infinity the Intercreditor Agreement 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 transactionreplacement therefor;
(ho) Liens upon real and/or personal on documents of title and the 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 time of its acquisition and was not created in anticipation thereof or (B) was created solely for the purpose of covered thereby securing Indebtedness representing, or incurred to finance, refinance or refund, all or a part in respect of the cost Commercial L/Cs;
(p) Liens on cash securing Indebtedness of the type described in subsection 7.1(f); and
(q) Liens existing on the Closing Date and described in Schedule 7.2(q) (including the cost extension of constructionany Liens listed on such Schedule relating to any Indebtedness permitted under subsection 7.1(a) in connection with any refinancing of such Property or improvements thereon; providedIndebtedness permitted by such subsection), provided that no such Lien shall extend to or cover any Property other property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity Bermuda Holdings or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables other than the respective property so encumbered and inventory in an aggregate amount not greater than $400,000,000 less the aggregate principal amount of Indebtedness that is secured pursuant to clause (ii) below; provided, that by any such Lien shall at no time exceed the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 original 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 such Property or other Property of equivalent value)so secured.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.), Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries to, directly or indirectly create, incur, assume or suffer permit to exist (upon the happening of a contingency or otherwise) any Lien upon any of its Property, on or enter into any Sale/Leaseback with respect to any property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such PropertySubsidiary, whether now owned or held or hereafter acquired; provided, that the foregoing restrictions shall not apply toor any income or profits therefrom, or assign or otherwise convey any right to receive income or profits except:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges that are not yet due and payable or the payment of which is not at the time required by Section 9.4;
(b) any Liens in connection with attachments or judgments (including judgment or appeal bonds), 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 incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums more than 90 days delinquent or which are being contested in good faith and by appropriate proceedings if and for which adequate reserves have been maintained in accordance with respect thereto are maintained;
(bGAAP) carriers'and Liens to secure the performance of bids, warehousemen'stenders, mechanics'leases, materialmen'sor trade contracts, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default secure statutory obligations (including obligations under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workers 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, surety or appeal bonds or performance bonds and contractual and other obligations of a like nature Liens incurred in the ordinary course of business and not involving in connection with the borrowing of money;
(fd) leases or subleases granted to others, easements, rights-of-way, restrictions (including zoning restrictions), minor defects or irregularities in title and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property charges or minor imperfections in title thereto and Liens under leases and subleases whichencumbrances, in each case incidental to the aggregate, are not material in amount, and which do not interfere in any material respects with ownership of property or assets or the ordinary conduct of the business of Infinity the Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and its Subsidiaries taken as the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens securing Indebtedness or other obligations of a wholeSubsidiary to the Company or to a Subsidiary Guarantor;
(f) any interest of title of a lessor under, and Liens arising from uniform commercial code financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(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, existing 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 transactionClosing Date and reflected in Schedule 10.4;
(h) Liens upon real and/or personal property acquired incurred after the Closing Date given to secure the payment of the price incurred (by purchaseor Indebtedness incurred to fund such payment) in connection with the acquisition, construction, foreclosurerepair, deed development, or improvement of property (other than accounts receivable or inventory) useful and intended to be used in lieu carrying on the business of foreclosure the Company or otherwise) by Infinity or any of its Subsidiariesa Subsidiary, each of which including Liens either (A) existed existing on such Property before property at the time of its acquisition and was not created in anticipation or construction thereof or (B) was created solely for the purpose Liens incurred within 365 days of securing Indebtedness representingsuch acquisition or completion of such construction, repair or development, or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed, repaired, developed, or improved, and, if required by the terms of the instrument originally creating such Lien, the proceeds thereof, general intangibles related thereto, and other property which is an improvement to or is acquired for specific use in connection with such property; (ii) at the time of acquisition, construction, repair, development, or improvement of such property (or, in the case of any Lien incurred to financewithin three hundred sixty-five (365) days of such acquisition or completion of such construction, refinance repair, development or refundimprovement, 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 part Subsidiary, shall not exceed the lesser of the cost (including y) the cost of such acquisition, construction, repair, development, or improvement plus related financing costs or (z) the Fair Market Value of such Property property (as determined in good faith by one or improvements thereonmore officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company); providedand (iii) at the time of such incurrence and after giving effect thereto, that no such Lien shall extend to Default or cover any Property Event of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereonDefault would exist;
(i) mortgages any Lien existing on Property securing indebtedness property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary (other than pursuant to Section 9.6), or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (i) no such Lien shall have been created or assumed in favor 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 United States of America or any state thereof or any departmentinstrument originally creating such Lien, agency or instrumentality or political subdivision of the United States of America or any state proceeds thereof, incurred general intangibles related thereto, and other property which is an improvement to or is acquired for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages specific use in connection with pollution controlsuch acquired property, industrial revenue and (iii) at the time of such incurrence and after giving effect thereto, no Default or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision Event of any statuteDefault would exist;
(j) Liens securing Indebtedness owed and other obligations on property or assets of the Company or its Subsidiaries which Liens were given after the Closing Date, provided the Company makes, or causes to Infinity or 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 an agreement reasonably satisfactory to the Required Holders and, in any Wholly Owned Subsidiary such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of Infinitythe Notes may be entitled under applicable law, of an equitable Lien on such property;
(k) Liens any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (g), (h), (i) upon the receivables and inventory (j) of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of this Section 10.4, provided that (i) no additional property shall be encumbered by 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 Liens, (ii) below; providedthe unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased on or after the date of any extension, that the terms of such Indebtedness do not provide for any recourse to Infinity renewal or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) replacement, and (iiiii) upon the Property at such time and immediately after giving effect thereto, no Default or Event of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000Default shall have occurred and be continuing;
(l) Sale/Leasebacks consummated prior Liens on equity interests of a joint venture owned by the Company or any Subsidiary to the Closing Dateextent securing Indebtedness of such joint venture and any Guaranty by the Company or any Subsidiary of such Indebtedness;
(m) any Sale/Leaseback rights of assets of Infinity owned on the Closing Date first refusal, purchase options and listed on Schedule 5.5(m)similar rights granted pursuant to joint venture agreements, stockholder agreements, organic documents and similar documents and agreements;
(n) additional Liens normal and customary rights of setoff upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum deposits of (i) the aggregate principal amount cash in favor of the obligations secured by such Liens (banks or 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 outstandingdepository institutions; and
(o) any extension, renewal or replacement Liens securing Priority Debt of the foregoing; providedCompany or any Subsidiary, howeverprovided that the aggregate principal amount of any such Priority Debt shall be permitted by Section 10.3, and, provided further that, except to the extent otherwise no such Liens permitted by this Section 5.5 (including Section 5.5(n)), 10.4(o) may secure any obligations under 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 such Property or other Property of equivalent value)Bank Credit Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (International Speedway Corp), Note Purchase Agreement (International Speedway Corp)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments assessments, governmental charges or charges levies (but excluding judgment Liens) not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of Hanover or any Subsidiary of Hanover, as the case may be, in conformity with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 60 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and deposits securing liability to insurance carriers under insurance or self insurance arrangements;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) immaterial irregularities in title, easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, amount and which do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity and Hanover or any of its Subsidiaries taken as a wholeSubsidiaries;
(f) leases or subleases granted to third Persons not interfering in any material respect with the business of Hanover or any of its Subsidiaries;
(g) Liens on Property of any Subsidiary of Infinity arising from UCC financing statements regarding leases permitted by this Agreement 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 transactionEquipment Leases;
(h) Liens upon real and/or personal property acquired (any interest or title of a lessor or sublessor under any lease permitted by purchase, construction, foreclosure, deed in lieu of foreclosure this Agreement or otherwise) by Infinity 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 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 thereonEquipment Leases;
(i) mortgages on Property securing indebtedness Liens in favor of the United States customs and revenue authorities arising as a matter of America or any state thereof or any department, agency or instrumentality or political subdivision law to secure payment of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages custom duties in connection with pollution control, industrial revenue or similar financings) or incurred the importation of goods so long as such Liens attach only to secure progress, advance or other payments pursuant to any contract or provision of any statutethe imported goods;
(j) Liens securing Indebtedness owed to Infinity arising out of consignment or to similar arrangements for the sale of goods entered into by Hanover or any Wholly Owned Subsidiary of Infinityits Subsidiaries in the ordinary course of business;
(k) Liens (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 created pursuant to clause (ii) below; provided, that the terms of such Indebtedness do not provide for any recourse Financing Leases permitted pursuant to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000Section 8.2(d);
(l) Sale/Leasebacks consummated prior Liens in existence on the Closing Date listed on Schedule 8.3(l), securing Indebtedness permitted by subsection 8.2(c) including any Refinancing Indebtedness incurred in respect thereof, provided that no such Lien is spread to cover any additional property after the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned Liens 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) 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 aggregate principal amount acquisition of which were financed with the proceeds of the obligations secured Indebtedness permitted by subsection 8.2(d) and which secures only such Liens (other than Indebtedness as defined in clause (f) Indebtedness, provided that any such Lien is placed upon such natural gas compressor or related equipment or such oil and gas production equipment at the time of the definition thereof which has not been assumed acquisition of such natural gas compressors or related equipment or such oil and gas production equipment by Infinity Hanover or any of its Subsidiaries and where the Lien relates extends to Property acquired no other property, and provided, further, that no such Lien is spread to cover any additional property after the date such Lien attaches and that the amount of Indebtedness secured thereby is not increased;
(n) Liens on the assets of Unqualified Subsidiaries of Hanover securing Indebtedness of such Unqualified Subsidiaries permitted under subsection 8.2(f);
(o) Liens securing Derivatives entered into by Infinity Hanover and its Subsidiaries with a lender under this Agreement or the Equipment Lease Transactions and which are permitted under Section 8.9;
(p) Liens on the property or assets of a Person which becomes a Subsidiary after the date hereof securing Indebtedness permitted by subsection 8.2(g), 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;
(q) Liens that arise in connection with the Equipment Lease Transactions;
(r) Liens created pursuant to the Security Documents;
(s) Liens securing Indebtedness of HCLP or any other Subsidiary incurred pursuant to Section 8.2(r) 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 amount of Indebtedness secured thereby is not increased;
(t) Liens not otherwise permitted in clauses (a)-(s) above securing Indebtedness not exceeding $2,500,000 in the aggregate;
(u) judgment Liens against Hanover or any of its Subsidiaries in satisfaction, in whole or in part, of indebtedness to Infinity or any of its Subsidiaries, involving in the ordinary course aggregate a liability (not paid or fully covered by insurance) of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and (ii) less than $5,000,000 in the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingaggregate; and
(ov) Liens on the property or assets of POC securing Indebtedness permitted by Section 8.2; provided that (i) such Liens existed at the time POC became a Subsidiary and were not created in anticipation thereof, (ii) 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 such Lien is not be spread to cover any additional Indebtedness property or Property assets of POC after the time POC becomes a Subsidiary, and (iii) the amount of Indebtedness, Guarantee Obligations and other than a substitution of like Property or improvements on such Property or other Property of equivalent value)obligations secured thereby is not increased.
Appears in 2 contracts
Sources: Credit Agreement (Hanover Compressor Co /), Credit Agreement (Hanover Compressor Co /)
Limitation on Liens. Infinity will notNo Loan Party shall, and will not nor shall it permit any of its Material Restricted Subsidiaries to, incur, create, incurassume, assume or suffer permit to exist any Lien upon any of its Property, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed in favor of Administrative Agent for the benefit of the Secured Parties;
(b) existing Liens disclosed on Schedule 7.2;
(c) encumbrances consisting of easements, Rights of Way, zoning restrictions, or 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 use or operate such assets in their respective businesses, and none of which is violated in any material respect by any Governmental Authority for taxesexisting or proposed structures or land use or operation;
(d) Liens of mechanics, assessments materialmen, warehousemen, carriers, or charges other similar statutory Liens securing obligations incurred in the ordinary course of business that are not yet due and payable or which are being contested in good faith and by appropriate proceedings if diligently pursued and for which adequate reserves in accordance with respect thereto are maintainedGAAP 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;
(be) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' Liens resulting from good faith deposits to secure payments of workmen’s compensation or other like social security programs (other than Liens arising 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 securing judgments or orders for the payment of money not constituting an Event of Default or securing appeal or other surety bonds related to such judgments;
(g) leases, licenses, subleases, or sublicenses granted to others in the ordinary course of business 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;
(h) Liens 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, sublessor, licensor, or sublicensor under leases, subleases, licenses, or sublicenses entered into by any Loan Party in the ordinary course of business, and 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, building, entitlement, and other land 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 similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that do not materially interfere with the ordinary conduct of the business of Borrower and its Subsidiaries nor materially adverse impact the value or use of real Property pledged as Collateral, taken as a whole;
(l) Liens on insurance policies and the 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 Liens securing Finance Lease Obligations with respect to specific leased Property, in each case to the extent permitted in Section 7.1(c);
(n) 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 the assets or Equity Interests of 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 Person becomes a Restricted Subsidiary, (y) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any of its Restricted Subsidiaries in a transaction otherwise permitted by this Agreement, or (z) existing on any asset prior to the acquisition thereof by the Borrower or any of 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;
(q) 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 for Taxes, assessments, or other governmental charges which are not overdue for a period of more than 30 days delinquent or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or proceedings diligently pursued and for which adequate reserves in accordance with GAAP have been established and for which such contest operates to perfect an appeal suspend the enforcement of any order foreclosure or decree but only to the extentlevy on any Property of any Loan Party or any of its Restricted Subsidiaries; (s) pledges, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges deposits or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges or deposits Liens to secure the performance of bids, trade contracts contracts, governmental contracts, and leases (in each case other than Debt for borrowed money), leasesstatutory or regulatory obligations, statutory obligations to secure surety, stay, customs and appeal or bonds, performance bonds and contractual bonds, and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 outstandingbusiness; 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 such Property or other Property of equivalent value).
Appears in 2 contracts
Sources: Credit Agreement (LandBridge Co LLC), Credit Agreement (LandBridge Co LLC)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, or sign or file or suffer to exist under the UCC of any jurisdiction a financing statement that names the foregoing restrictions shall not apply toCompany or any of its Restricted Subsidiaries as debtor, or assign any accounts or other right to receive income, except:
(a) Liens imposed by any Governmental Authority for taxesTaxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Company or such Restricted Subsidiary, as the case may be, in accordance with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, landlords’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business 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 for a period of by more than 30 days or which are being contested in good faith and by appropriate proceedingsproceedings 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;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workmen’s compensation, unemployment insurance and other social security legislation;
(d) easements, right-of-way, zoning and similar restrictions and other similar encumbrances or title defects incurred, or leases or subleases or licenses granted to others, 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 do not interfere with or adversely affect in any material respect the ordinary conduct of the business of the Company and its Restricted Subsidiaries taken as a whole;
(e) pledges 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 in existence on the Effective Date and described in Schedule 9.3 and renewals thereof in amounts not to exceed the amounts listed on such Schedule 9.3;
(i) Liens on assets acquired in connection with a Permitted Acquisition or a Permitted 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 in anticipation thereof, and (B) are not extended to cover other assets of the Company or any of its Restricted Subsidiaries;
(j) any leases or licenses of any intellectual property or intangible assets or entering into any franchise agreement in the ordinary course of business;
(k) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, licenses, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fl) easementsLiens securing Indebtedness owing to the Company or any Restricted Subsidiary under Section 9.2(b)(ii);
(m) Liens on fixed or capital assets acquired, rightsconstructed 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 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 property or assets of the Company or any Restricted Subsidiary, and (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 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 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 judgments that do not constitute an Event of Default under Section 10.1(h);
(p) Liens arising from precautionary UCC filings or similar filings relating to (x) Operating Leases and (y) sub-of-wayleasing 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 importation of 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, restrictions and other similar encumbrances incurred (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 encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 outstandingbusiness; and
(ot) any extensionLiens to secure Indebtedness permitted under Section 9.2(n), renewal or replacement of the foregoing; provided, however, that, except provided that to the extent otherwise 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 by this Section 5.5 to exist, directly or indirectly (including Section 5.5(n)i) on the Collateral (as defined in the Pledge and Security Agreements), other than Liens created under the Liens Pledge and Security Agreements and under clauses (a) or (t) above, or (ii) except as permitted under this paragraph shall not be spread to cover any additional Indebtedness or Property clauses (other than a substitution of like Property or improvements a), (f), (i) and (j) above, on such Property or other Property of equivalent value)material trademarks.
Appears in 2 contracts
Sources: Credit Agreement (KLX Inc.), Loan Agreement (KLX Inc.)
Limitation on Liens. Infinity will Each Borrower shall not, and will shall not permit any of its Material Subsidiaries that are Guarantors to, incur, create, incurassume, assume or suffer permit to exist any Lien upon any of its Property, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed existing on the date hereof and disclosed on Schedule 7.2;
(b) Liens in favor of the Secured Parties or Administrative Agent for the benefit of Secured Parties;
(c) encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real Property that do not (individually or in the aggregate) materially affect the value of the 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 any Governmental Authority existing or proposed structures or land use;
(d) Liens for taxesTaxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if diligently pursued and for which adequate reserves in accordance with respect thereto are maintainedGAAP 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;
(be) carriers'Liens of mechanics, materialmen, warehousemen's, mechanics'carriers, materialmen's, repairmen's, architects' or other like similar statutory Liens arising securing obligations incurred in the ordinary course of business which that are not overdue for a period of more than 30 days yet due or which are being contested in good faith and by appropriate proceedings;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
(cf) Liens securing judgments resulting from good faith deposits to secure payments of workmen’s compensation or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
programs (eother than Liens imposed by ERISA) pledges or deposits to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, trade contracts (other than for borrowed moneypayment of Debt), leases, statutory obligations to secure surety, appeal or performance bonds and contractual and other obligations of a like nature incurred leases made in the ordinary course of business and business; provided that the foregoing covenant shall not involving the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances apply to any Property consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)Margin Stock.
Appears in 2 contracts
Sources: Credit Agreement (Maxwell W Keith III), Credit Agreement (Via Renewables, Inc.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings; provided that adequate reserves with respect thereto are maintainedmaintained on the books of such Loan Party, in conformity with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s Liens, or other like similar Liens arising in the ordinary course of business which are not overdue for a period of more than 30 60 days or which are being contested in good faith and by appropriate proceedingsproceedings or which have been bonded over or otherwise adequately secured against;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation or in connection with casualty insurance;
(ed) pledges deposits or deposits bonds to secure (i) the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or performance bonds and contractual (ii) indemnities, performance and similar bonds and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(e) Permitted Cash Management Liens;
(f) easements, rights-of-way, restrictions and other similar encumbrances title exceptions and encumbrances, landlords’ and lessors’ Liens on rented premises and restrictions on transfers of leases, each incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, secure obligations that do not constitute Indebtedness, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholethe Loan Parties;
(g) Liens on Property of any Subsidiary of Infinity arising from precautionary 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 transactionunauthorized Uniform Commercial Code financing statements;
(h) Liens 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 created pursuant to the time of its acquisition Security Documents 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, 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 thereonLoan Documents;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteFirst Purchaser Liens;
(j) Liens securing Indebtedness netting and other offset rights granted by any Loan Party to counterparties under Commodity Contracts and Financial Hedging Agreements on or with respect to payment and other obligations owed by such Loan Party to Infinity or to any Wholly Owned Subsidiary of Infinitysuch counterparties;
(k) Liens (i) upon in existence on the receivables Closing Date that are listed, 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; providedproperty subject thereto described, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000on Schedule 8.3;
(l) Sale/Leasebacks consummated prior to Liens on cash and short-term investments deposited as collateral by a Loan Party under any Commodity Contract or Financial Hedging Agreement with the Closing Datecounterparty (or counterparties) thereto;
(m) any Sale/Leaseback Liens securing judgments for the payment of assets money not constituting an Event of Infinity owned on the Closing Date and listed on Schedule 5.5(m)Default under Section 9.1(i) or securing appeal or other surety bonds related to such judgments;
(n) additional Liens upon of the account bank on currency, Cash Equivalents, commodities or Commodities Contracts of the Loan Parties deposited in, or credited to, any Controlled Account that are subject to an Account Control Agreement; provided that, such Liens are specifically permitted by such Account Control Agreement or arise by operation of law;
(o) Liens securing Indebtedness of the Loan Parties permitted by Section 8.2(f); provided that such Liens do not at any time encumber any property other than the inventory, forward contracts and receivables related to the Cash and Carry Transactions financed by such Indebtedness;
(p) Liens securing Indebtedness of the Loan Parties permitted by Section 8.2(g);
(q) restrictions under federal and state securities laws on the transfer of securities;
(r) Liens constituting purchase money security interests (including mortgages, conditional sales, Financing Leases and any other title retention or deferred purchase devices) in real and/or personal property, and additional Sale/Leasebacksinterests in leases or personal property existing or created on the date on which such property is acquired; provided, however, that the sum of (i) each such security interest shall attach solely to the aggregate particular item of property so acquired, and the principal amount of Indebtedness secured thereby shall not exceed the obligations cost (including all such Indebtedness secured by such Liens (other than Indebtedness as defined in clause (fthereby, whether or not assumed) of the definition thereof which has not been assumed by Infinity or any such item 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")) property; and (ii) the aggregate Sale/Leaseback Attributable Debt Indebtedness secured thereby was incurred, and permitted, pursuant to Section 8.2(c);
(s) Liens securing the Maine Dock Liability Obligations and the Office Building Obligations in connection with respect the incurrence of such liabilities; provided, however, that each such Lien shall attach solely to such Sale/Leasebacks shall the property acquired; and
(t) Liens on assets not included in the Borrowing Base securing obligations of the Loan Parties in an amount not to exceed $125,000,000 2,500,000 in the aggregate at any one time outstanding; and
(o) any extension, renewal or replacement of the foregoing; provided, however, that, except . Notwithstanding anything to the extent otherwise permitted by contrary contained in this Section 5.5 Agreement or any Security Document (including Section 5.5(n)any provision for, reference to, or acknowledgement of, any Lien or Permitted Borrowing Base Lien or Permitted Cash Management Lien), nothing herein and no approval by the Liens permitted under this paragraph Administrative Agent or Lenders of any Lien, Permitted Borrowing Base Lien or Permitted Cash Management Lien (whether such approval is oral or in writing) shall not be spread construed as or deemed to cover constitute a subordination by the Administrative Agent or the Lenders of any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property security interest or other Property right, interest or Lien in or to the Collateral or any part thereof in favor of equivalent value)any Lien, Permitted Borrowing Base Lien or Permitted Cash Management Lien or any holder of any Lien, Permitted Borrowing Base Lien or Permitted Cash Management Lien.
Appears in 2 contracts
Sources: Credit Agreement (Sprague Resources LP), Credit Agreement (Sprague Resources LP)
Limitation on Liens. Infinity The Borrowers will not, and nor will not it permit any of its Material Subsidiaries Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its Propertytheir property, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that other than the foregoing restrictions shall not apply tofollowing:
(a) Liens imposed existing on the Closing Date and listed on Schedule 8.2, and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 8.1(b), (iii) the direct or any Governmental Authority contingent obligor with respect thereto is not changed and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 8.1(b);
(b) Liens for taxes, assessments or charges Taxes not yet due and payable or which that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintainedmaintained on the books of the applicable Person in accordance with GAAP;
(bc) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which that are not overdue for a period of more than 30 90 days or which that are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIapplicable Person;
(d) pledges or deposits under worker's in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA, and (ii) public utility services provided to the Borrowers or a Subsidiary;
(e) pledges or deposits to secure the performance of bids, trade contracts and leases (other than for borrowed moneyIndebtedness), leasesstatutory obligations, statutory obligations to secure suretysurety and appeal bonds, 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 moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of affecting Real Property or minor imperfections in title thereto and Liens under leases and subleases which, that (i) in the aggregate, are not material substantial in amount, and which that do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity the applicable Person, and its any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any Real Property that does not materially interfere with the ordinary conduct of the business of the Borrowers and their Subsidiaries taken as a wholeor (ii) are set forth on any title insurance policy for any Eligible Asset;
(g) Liens on Property securing judgments for the payment of any Subsidiary money not constituting an Event 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 transactionDefault under Section 10.1(j);
(h) Liens upon real and/or personal securing Debt or Indebtedness permitted under Section 8.1(e); provided that (i) such Liens do not at any time encumber any 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 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, 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 property financed by such Debt or Indebtedness and (ii) the Debt or Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired and improvements thereonon the date of acquisition;
(i) mortgages Liens (i) of a collecting bank arising under Section 4-210 of the Uniform Commercial Code on Property securing indebtedness items in the course of collection, and (ii) in favor of the United States a banking institution arising as a matter of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages law encumbering deposits (including without limitation such debt secured by such mortgages the right of setoff) that are customary in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statutethe banking industry;
(j) Liens securing Indebtedness owed to Infinity any interest or to any Wholly Owned Subsidiary title of Infinitya lessor, sublessor, licensor or sublicensor under leases or licenses permitted by this Agreement that are entered into in the ordinary course of business;
(k) Liens (i) upon the receivables and inventory of Infinity leases, licenses, subleases or any of its Subsidiaries sublicenses granted 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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, others in the ordinary course of business that do not (i) interfere in any such Indebtednessmaterial respect with the ordinary conduct of the business of the Borrowers and their Subsidiaries, "Specified Section 5.5(n) Indebtedness")) and or (ii) the aggregate Sale/Leaseback Attributable secure any Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingor Indebtedness; and
(ol) any extension, renewal or replacement Liens in favor of the foregoing; provided, however, that, except to Administrative Agent for the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), benefit of 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 such Property or other Property of equivalent value)Secured Parties.
Appears in 2 contracts
Sources: Secured Revolving Loan Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Secured Revolving Loan Credit Agreement (Strategic Wireless Infrastructure Fund Ii, Inc.)
Limitation on Liens. Infinity will Each Loan Party shall not, and will shall not permit any of its Material Subsidiaries to, incur, create, incurassume, assume or suffer permit to exist any Lien upon any of its Property, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) existing Liens imposed disclosed on Schedule 7.2;
(b) Liens in favor of the Secured Parties or Administrative Agent for the benefit of Secured Parties;
(c) encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real Property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of any Loan Party or its Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by any Governmental Authority existing or proposed structures or land use;
(d) Liens for taxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if for which adequate reserves in accordance with respect thereto are maintainedGAAP have been established and for which such contest operates to suspend the enforcement of any foreclosure or levy on any Property of each Loan Party or any of its Subsidiary;
(be) carriers'Liens of landlords, vendors, mechanics, materialmen, warehousemen's, mechanics'carriers, materialmen's, repairmen's, architects' or other like similar statutory Liens arising securing obligations incurred in the ordinary course of business which that are not overdue for a period of more than 30 days yet due or which are being contested in good faith and by appropriate proceedingsfor 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 each Loan Party or any of its Subsidiaries;
(cf) Liens securing judgments or resulting from good faith deposits to perfect an appeal secure payments of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workmen’s compensation, unemployment insurance and or other social security legislation;
programs (eother than Liens imposed by ERISA) pledges or deposits to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, trade contracts (other than for borrowed moneypayment of Debt), leasesor leases made in the ordinary course of business;
(g) normal and customary rights of setoff upon deposits in favor of depository institutions, statutory obligations to secure surety, appeal or performance bonds and contractual and other obligations Liens of a like nature incurred collecting bank on payment items in the course of collection;
(h) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases or consignments of personal property entered into in the ordinary course of business;
(i) Liens granted in the ordinary course of business and not involving the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use unearned portion of Property or minor imperfections in title thereto and Liens insurance premiums securing the financing of insurance premiums to the extent the financing is permitted 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 Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteSection 7.1(h);
(j) Liens on specific Property to secure Purchase Money Debt used to acquire such Property and Liens securing Indebtedness owed Capitalized Lease Obligations with respect to Infinity or specific leased Property, in each case to any Wholly Owned Subsidiary of Infinitythe extent permitted in Section 7.1(c);
(k) Liens (i) upon the receivables and inventory of Infinity or any of its Subsidiaries on Specified Excluded Real Property 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) belowDebt permitted under Section 7.1(k); provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;and
(l) Sale/Leasebacks consummated prior other Liens securing Debt not 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) exceed $1,000,000 in 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) provided that such Liens do not at any extension, renewal time encumber any assets included or replacement eligible for inclusion in the Borrowing Base. Nothing contained in this Section 7.2 shall in and of itself cause the obligations of the foregoing; provided, however, that, except Loan Parties to the extent otherwise Secured Parties under or pursuant to the Loan Documents to be subordinated to any Lien permitted by this Section 5.5 (including Section 5.5(n)), 7.2 or cause any Liens in favor of the Liens Secured Parties to rank subordinate to any such 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 such Property or other Property of equivalent value)Liens.
Appears in 2 contracts
Sources: Credit Agreement (Natural Gas Services Group Inc), Credit Agreement (Natural Gas Services Group Inc)
Limitation on Liens. Infinity The Borrower will not, and will not permit any of its Material Subsidiaries Restricted Subsidiary to, create, create or incur, assume or suffer to exist be incurred or to exist, any Lien upon any of on its Property, or enter into any Sale/Leaseback with respect to any such Propertytheir property or assets, whether now owned or hereafter acquired; provided, that or upon any income or profits therefrom, or transfer any property for the foregoing restrictions shall not apply topurpose 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 imposed by any Governmental Authority for taxes, 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 yet due and payable or which are being contested in good faith and at the time required by appropriate proceedings if adequate reserves with respect thereto are maintainedSection 5.08;
(b) carriers'Liens of or resulting from any judgment or award, warehousemen'sthe time for the appeal or petition for rehearing of which shall not have expired, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in respect of which the ordinary course of business which are not overdue for Borrower or a period of more than 30 days or which are being contested Restricted Subsidiary shall at any time in good faith be prosecuting an appeal or proceeding for a review and by appropriate proceedingsin respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only incidental to the extent, for an amount conduct of business or the ownership of properties and for a period not resulting assets (including Liens in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under connection with worker's ’s compensation, unemployment insurance and other social security legislation;
(elike laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens) pledges or deposits and Liens to secure the performance of bids, tenders or trade contracts (other than for borrowed money)contracts, leases, statutory obligations or to secure suretystatutory obligations, surety or appeal bonds or performance bonds and contractual and other obligations Liens of a like nature general nature, in any such case incurred in the ordinary course of business and not involving in connection with the borrowing of money; provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings;
(fd) easementsminor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, restrictions utilities and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of purposes, or zoning restrictions, easements, licenses, or other restrictions on as to the use of Property real properties, which are necessary for the conduct of the activities of the Borrower and its Restricted Subsidiaries or minor imperfections which customarily exist on properties of corporations engaged in title thereto similar activities and Liens under leases and subleases which, in the aggregate, are not material in amount, similarly situated and which do not interfere in any material respects with event materially impair their use in the ordinary conduct operation of the business of Infinity the Borrower and its Subsidiaries taken Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Borrower or to another Wholly-owned Restricted Subsidiary;
(f) Liens existing on the date hereof as a wholescheduled on Schedule 6.03 annexed hereto;
(g) Liens on Property of any Subsidiary of Infinity fixed or of any Person which is capital assets acquired, constructed or was merged with or into Infinity improved by the Borrower or any Subsidiary thereofSubsidiary; providedprovided that (i) such security interests secure Indebtedness permitted by Section 6.02, that (ii) such Liens and the Indebtedness secured thereby are incurred prior to or were in existence at within 90 days after such acquisition or the time completion of such Person becomes construction or became a Subsidiary improvement, (iii) the Indebtedness secured thereby does not exceed 100% of Infinity the cost of acquiring, constructing or improving such Person merged with fixed or into Infinity capital assets and (iv) such security interests shall not apply to any other property or assets of the Borrower 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 transactionSubsidiary;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Other Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
other than as described in the foregoing clauses (ka) Liens through (ig) 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; providedabove, provided that the terms Indebtedness secured by all such other Liens does not exceed at any time ten percent of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of total consolidated assets of Infinity owned on the Closing Date Borrower 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 Restricted 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 such Property or other Property of equivalent value).
Appears in 2 contracts
Sources: Credit Agreement (Cubic Corp /De/), Credit Agreement (Cubic Corp /De/)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed for taxes not overdue by any Governmental Authority more than 30 days, Liens for taxes not required to be discharged pursuant to Section 5.3 or Liens with respect to taxes, assessments or other governmental charges not yet due and payable or which levies that are being contested in good faith and by appropriate proceedings if proceedings; provided that, in the case of Liens with respect to contested taxes, assessments or other governmental charges or levies, adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP, and Liens for property taxes on property that the Borrower or any of its Subsidiaries has determined to abandon (so long as such abandonment is not prohibited by this Agreement or any of the other Loan Documents), if the sole recourse for such tax is to such property;
(b) Liens securing judgments for the payment of money not constituting an Event of Default under Section 7.1(i);
(c) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s, contractor’s or other like Liens arising in the ordinary course of business which securing obligations that are not overdue for a period of more than 30 days days, or which that are being contested in good faith and by appropriate proceedings;
; provided that (ci) Liens securing judgments adequate reserves with respect thereto are maintained on the books of the Borrower or to perfect an appeal of any order its Subsidiaries, as the case may be, in conformity with GAAP or decree but only (ii) a bond or other security reasonably acceptable to the extent, for Required Consent Parties in an amount and for a period not resulting in an Event equal to 100.0% of Default under paragraph (h) of Article VIsuch obligations is procured;
(d) undetermined or inchoate Liens incidental to current operations which have not at such time been filed and which do not secure Indebtedness;
(e) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislation;
(ef) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, concessions, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing business, or deposits to secure letters of moneycredit, bank guarantees, bankers’ acceptances, cash management obligations (including credit card processing obligations) or similar instruments related thereto;
(fg) restrictions, covenants, land use contracts, rent charges, building schemes, declarations of covenants, conditions and restrictions, servicing agreements in favor of any Governmental Authority, easements, rights-of-way, restrictions and servitudes or other similar encumbrances rights in or with respect to real property (including open space and conservation easements, restrictions or similar agreements and rights of way and servitudes for railways, water, sewer, drainage, gas and oil pipelines, electricity, light, power, telephone, telegraph, internet or cable television services and utilities) granted to or reserved by other Persons or properties, incurred in the ordinary course of business and encumbrances consisting of zoning restrictionsbusiness, easements, licenses, restrictions on which in the aggregate do not materially impair the use of Property or minor imperfections in title thereto and Liens 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 operation of the business of Infinity such Person or the property subject thereto and its Subsidiaries taken as a wholeany exception on the final title policies issued in connection with the Mortgages;
(gh) the right reserved to or vested in any Governmental Authority, by the terms of any Permit acquired by such Person or by any Law, to terminate any such Permit or to require annual or other payments as a condition to the continuance thereof;
(i) the Lien resulting from the deposit of cash or securities in connection with any of the Liens permitted by Sections 6.3(a), (b) or (c), or in connection with contracts, tenders, leases or expropriation proceedings, or to secure workers’ compensation, surety or appeal bonds, costs of litigation when required by Law and public and statutory obligations, and any right of refund, set-off or charge-back, or Liens of a collection bank on items in the course of collection, available to any bank or financial institution, including under the general terms and conditions of such bank or financial institution and/or its bank account opening documents or arising as a matter of Law;
(j) any security given to a public authority or other service provider or any other Governmental Authority when required by such utility or other Governmental Authority in connection with the operations of such person in the ordinary course of its business;
(k) any agreement or option to lease, license, sub-lease or sub-license (as lessee, lessor, licensee or licensor) any Property or right of use or occupancy assumed or entered by or on behalf of any LNG Group Member in the ordinary course of its business;
(l) the reservations, limitations, provisos and conditions, if any, expressed in any grants from any Governmental Authority or any similar authority;
(m) title defects or irregularities which are of a minor nature and in the aggregate will not materially impair the use of the Property for the purposes for which it is held by the Borrower or any of its Subsidiaries;
(n) junior priority Liens securing Indebtedness incurred pursuant to Section 6.2(u);
(o) Liens in existence on the Closing Date listed on Schedule 6.3(o), securing Indebtedness permitted by Section 6.2, and any modifications, replacements, renewals or extensions thereof; provided that no such Lien is spread to cover any additional Property after the Closing Date (other than (i) afteracquired Property that is affixed or incorporated into the Property covered by such Lien or financed by Indebtedness permitted to be incurred under Section 6.2 and (ii) proceeds and products thereof) and that the principal amount of any Subsidiary Indebtedness secured thereby is not increased (other than capitalized amounts related to fees and expenses incurred with respect thereto and unpaid accrued interest and premiums thereon);
(p) Liens securing Indebtedness of Infinity or of any Person which is or was merged with or into Infinity the Borrower 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 incurred pursuant to Section 6.2(c) to finance the purchase acquisition (including pursuant to a sale and leaseback transaction), construction, repair, replacement or improvement of Property (real or personal), equipment or other assets used or useful in the business; provided that (i) such Liens shall be created within 365 days of the acquisition (including pursuant to a sale and leaseback transaction), construction, repair, replacement or improvement, as applicable, of such Property, equipment or other assets, and (ii) such Liens do not at any time encumber any Property, equipment or other assets other than the Property, equipment or other assets financed by such Indebtedness, replacements thereof, additions and accessions to such property, proceeds and products thereof and customary security deposits (except that individual financings of Property, equipment or other assets provided by one lender may be cross-collateralized to other financings of Property, equipment or other assets provided by such lender);
(q) Liens created pursuant to the Loan Documents;
(r) Liens created in favor of Chart Energy & Chemicals Inc. pursuant to the Chart Energy Purchase Order as in effect on the Closing Date, which Liens are expressly subordinated or junior to the Liens securing the Obligations;
(s) Liens securing Indebtedness of any LNG Group Member incurred pursuant to Section 6.2(e); provided that (i) such Liens do not spread to cover at any time encumber any Property other than the Property covered at the time (including Capital Stock of the relevant transaction;
(h) Liens upon real and/or personal property any entity acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or and any of its Subsidiaries) acquired in such Acquisition and (ii) in the case of Indebtedness incurred pursuant to Section 6.2(e)(ii), each the amount of which Liens either (A) existed on such Property before the time of its acquisition and was Indebtedness initially secured thereby is 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 more than 100% of the cost (including the cost of construction) of aggregate consideration paid in connection with 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 Acquisitions plus fees and improvements thereonexpenses incurred in connection therewith;
(it) mortgages on Property securing indebtedness in favor any right of the United States of America set-off, refund or charge-back available to any bank or other financial institution or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages other Lien arising in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statutetherewith;
(ju) Liens securing Indebtedness owed incurred pursuant to Infinity or to any Wholly Owned Subsidiary of InfinitySection 6.2(k);
(kv) [Reserved];
(w) [Reserved];
(x) [Reserved];
(y) Liens on cash collateral to secure (i) upon the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables and inventory Hedge Agreements permitted by Section 6.8(n), in an aggregate amount of such cash collateral not greater than to exceed $400,000,000 less 1,000,000 plus, so long as no Excess Cash Restriction Period shall be continuing, the aggregate amount Available Amount as of Indebtedness that is secured pursuant to clause such date and Not Otherwise Applied, or (ii) below; provided, that the terms letters of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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(mcredit permitted by Section 6.2(i);
(nz) additional Liens upon real and/or personal property, in favor of customs and additional Sale/Leasebacks; provided, that revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the sum importation 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, goods in the ordinary course of business business;
(aa) Liens on Property subject to an agreement to Dispose of such Property in a transaction permitted under Section 6.5;
(bb) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any such Indebtedness, "Specified Section 5.5(nLNG Group Member (other than Holdings) Indebtedness")in the ordinary course of business;
(cc) Liens on insurance policies and (ii) the aggregate Sale/Leaseback Attributable Debt proceeds thereof securing the financing of the premiums with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingthereto; and
(odd) other Liens of 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 LNG Group Member (other than a substitution of like Property or improvements on such Property Holdings) securing Indebtedness or other Property obligations in an aggregate principal amount at any time outstanding not to exceed $750,000, determined at the time of equivalent value)incurrence of such Indebtedness or other obligations.
Appears in 2 contracts
Sources: Senior Secured Delayed Draw Term Loan Credit Agreement (New Fortress Energy LLC), Senior Secured Delayed Draw Term Loan Credit Agreement (NFE Financial Holdings LLC)
Limitation on Liens. Infinity The Company will not, and nor will not it permit any of its Material Subsidiaries Subsidiary to, create, incur, assume incur or suffer permit to exist any Lien upon of any of its Property, kind on any property owned by the Company or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquiredSubsidiary; provided, provided that the foregoing restrictions shall not apply to:to nor operate to prevent (each of the following, a “Permitted Lien”):
(a) Liens imposed by any Governmental Authority for taxes, assessments assessments, governmental charges or charges levies; provided that payment thereof is not yet due and payable or which are being contested in good faith and at the time required by appropriate proceedings if adequate reserves with respect thereto are maintainedSection 9.4;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising under statutes or by operation of law, Liens 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 connection with worker’s compensation, unemployment insurance, social security and by appropriate proceedings;
other similar laws (c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extentincluding, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) without limitation, pledges or deposits securing liability to insurance carriers under worker's compensationinsurance or self-insurance arrangements), unemployment insurance and other social security legislation;
(e) pledges or deposits Liens to secure the performance of bids, trade contracts (tenders, trade, government or other than similar contracts, obligations for borrowed money)utilities, leases, licenses, statutory obligations to secure obligations, completion guarantees, surety, judgment, appeal or performance bonds and contractual and bonds, or other obligations similar bonds, or other Liens of a like nature general nature, in any such case incurred in the ordinary course of business and not involving in connection with the borrowing creation or incurrence of moneyIndebtedness; provided that (i) any such Lien secures only amounts not due and payable or the 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 Company and its Subsidiaries taken as a whole or the value of the related property for the purposes of such business;
(fc) easementsmechanics’, rights-of-wayworkmen’s, restrictions and materialmen’s, attorney’s, landlords’, carriers’ or other similar encumbrances incurred 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 which 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, 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 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 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 in the ordinary course of business;
(j) Liens constituting (i) survey restrictions, encumbrances consisting in the nature of zoning restrictions, condemnations, easements, licensesencroachments, covenants, rights of way, defects, irregularities and rights or restrictions of record on the title or use of Property real property, and (ii) leases, subleases, licenses or minor imperfections sublicenses granted to others in title thereto the ordinary course of business and Liens covering property subject to any lease which was not entered into in violation of this Agreement securing the interest of the lessor or other Person under leases and subleases whichsuch lease, in the aggregate, are not material in amount, and which do not interfere in any material respects with such case does not materially detract from the ordinary conduct value of the subject property or materially impair the use thereof in the business of Infinity the Company and its Subsidiaries taken as a whole;
(gk) Liens on Property 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 Subsidiary of Infinity joint venture or of similar arrangement pursuant to any Person which is joint venture or was merged with or similar agreement in any such case not entered 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue the creation or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision incurrence of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000Indebtedness;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) Liens other than those permitted by 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 foregoing subsections (a) through (k); provided that all Indebtedness secured by any 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 SubsidiariesLiens, in the ordinary course of business (any aggregate with all other Consolidated Priority Indebtedness at such Indebtednesstime, "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall does not exceed $125,000,000 at any one time outstanding15% of Consolidated Total Capitalization, calculated in accordance with Agreement Accounting Principles; and
(om) any extension, renewal or replacement of the foregoing; provided, however, that, except to the extent otherwise any Lien permitted by the preceding clauses (e), (f), (g) and (h) of this Section 5.5 10.4; provided that (including Section 5.5(n))i) no additional property (other than improvements thereon) shall be encumbered by such Liens, (ii) the Liens permitted under this paragraph unpaid principal amount of Indebtedness secured thereby shall not be spread increased on or after the date of 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 cover 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 additional Subsidiary to, create, incur or permit to exist any Lien of any kind on any property owned by the Company or such Subsidiary to secure any Indebtedness of the Company or Property (any Subsidiary under the Bank Credit Agreement unless the Notes and all other than respective obligations of the Obligors under this Agreement and of the Subsidiary Guarantors under any Subsidiary Guaranty, as applicable, are secured on a substitution of like Property or improvements pari passu basis by a lien on such Property or other Property of equivalent value)property pursuant to documentation, including an intercreditor agreement, in form and substance reasonably satisfactory to the Required Holders.
Appears in 2 contracts
Sources: Note Purchase Agreement (Gallagher Arthur J & Co), Note Purchase Agreement (Gallagher Arthur J & Co)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist ------------------- any Lien upon any of its Propertyproperty, assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Company or such Subsidiary, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business in respect of obligations which are not overdue for a period of more than 30 days yet due or which are bonded or which are being contested in good faith and by appropriate proceedingsproceedings if adequate reserves with respect thereto are maintained on the books of the Company or such Subsidiary, as the case may be, in accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under workerin connection with workmen's compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, tenders, trade or government contracts (other than for borrowed money), leases, licenses, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easementseasements (including, without limitation, reciprocal easement agreements), rights-of-way, restrictions building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, changes, and other similar encumbrances incurred or title defects incurred, or leases or subleases granted to others, in the ordinary course of business and encumbrances consisting of zoning restrictionsbusiness, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not in the aggregate materially detract from the aggregate value of the properties of the Company and its Subsidiaries, taken as a whole, or in the aggregate materially interfere with or adversely affect in any material respects with respect the ordinary conduct of the business of Infinity the Company and its Subsidiaries on the properties subject thereto, taken as a whole;
(f) Liens in favor of the Administrative Agent and the Lenders pursuant to the Credit Documents, including Liens pursuant to the Credit Documents in respect of Interest Rate Agreements, and bankers' liens arising by operation of law;
(g) Liens on Property property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity the Company 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 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 time of its acquisition and was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representing, permitted by subsection 7.1(e) representing or incurred to finance, refinance or refundrefund the purchase price of property or the cost of making improvements thereto, all provided that (i) no such -------- Lien shall extend to or a part cover property of the cost Company or such Subsidiary other than the respective property so acquired or improved and (ii) the principal amount of Indebtedness secured by any such Lien shall not exceed the fair market value of such property at the time of the creation of such Indebtedness;
(h) Liens on property of the Company or any Subsidiary acquired with the proceeds of any Indebtedness permitted by subsection 7.1(f), or on the Capital Stock of any such acquired Subsidiary, to secure such Indebtedness, provided that (i) no such Lien shall extend to or cover other property of the -------- Company or such Subsidiary and (ii) the principal amount of Indebtedness secured by any such Lien shall not exceed the original purchase price of such property;
(i) Liens existing on the Closing Date after giving effect to the consummation of the Merger and described in subsection 4.13 or Schedule 7.2(i) (including the cost extension of constructionany Liens listed on such Schedule relating to any Indebtedness permitted under subsection 7.1(a) in connection with any refinancing of such Property or improvements thereon; providedIndebtedness permitted by such subsection and any Liens securing Indebtedness to be repaid on the Closing Date to the extent the Company has made arrangements to terminate such Liens in a manner satisfactory to the Administrative Agent), provided that no such Lien shall extend to or cover any Property other -------- property of Infinity the Company or such the respective Subsidiary other than the respective Property property so acquired encumbered and improvements thereon;
(i) mortgages on Property securing indebtedness in favor the principal amount of Indebtedness secured by any such Lien shall at no time exceed the original principal amount of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteIndebtedness so secured;
(j) Liens on documents of title and the property covered thereby securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary in respect of Infinitythe Commercial L/Cs;
(k) Liens (i) upon the receivables and inventory of Infinity mortgages, liens, security interests, restrictions, encumbrances or any other matter 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 record that have been placed by any developer, landlord or other third party on property over which 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 Company or any Material Subsidiary (except to the extent of breaches of representations has easement rights or on any Leased Property and warranties of Infinity subordination or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) similar agreements relating thereto and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000any condemnation or eminent domain proceedings affecting any real property;
(l) Sale/Leasebacks consummated prior to Liens in connection with workmen's compensation obligations and general liability exposure of the Closing DateCompany and its Subsidiaries;
(m) any Sale/Leaseback Liens on goods (and proceeds thereof) securing reimbursement obligations in respect of assets commercial letters of Infinity owned on credit issued in accordance with the Closing Date and listed on Schedule 5.5(m)terms of this Agreement;
(n) additional Liens upon real and/or on the Capital Stock or assets of any Foreign Subsidiary securing Indebtedness of such Foreign Subsidiary permitted by subsection 7.1(k);
(o) Liens on the Capital Stock or personal property, and additional Sale/Leasebacks; provided, that the sum property of (i) the aggregate principal amount any Subsidiary securing operating leases 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 outstandingSubsidiary; and
(op) any extension, renewal or replacement Liens on property of the foregoing; provided, however, that, except to Company or any Subsidiary created solely for the extent otherwise purpose of securing Indebtedness 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 such Property or other Property of equivalent valuesubsection 7.1(o).
Appears in 2 contracts
Sources: Credit Agreement (Harborside Healthcare Corp), Credit Agreement (Sailors Inc)
Limitation on Liens. Infinity will Borrower shall not, and will shall not permit any of its Material Subsidiaries to, incur, create, incurassume, assume or suffer permit to exist any Lien upon any of its Property, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) existing Liens imposed disclosed on Schedule 8.2;
(b) Liens in favor of Administrative Agent for the benefit of the Secured Parties, so long as, with respect to Liens for the benefit of Approved Commodity Swap Counterparties other than Bank Product Providers, such Liens are permitted by and subject to the Intercreditor Agreement;
(c) encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that are customary in the oil and gas industry and do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of Borrower or its Subsidiaries to use or operate such assets in their respective businesses, and none of which is violated in any Governmental Authority material respect by existing or proposed structures or land use or operation;
(d) Liens for taxesTaxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if for which adequate reserves in accordance with respect thereto are maintained;
GAAP have been established; (be) carriers'Liens of landlords, vendors, repairmen, suppliers, workers, builders, mechanics, materialmen, warehousemen's, mechanics'carriers, materialmen's, repairmen's, architects' or other like similar statutory Liens arising in the ordinary course of business which securing obligations that are not overdue for a period of more than 30 days yet due (or which are being contested in good faith and by appropriate proceedings;
(cfor which adequate reserves are maintained in accordance with GAAP) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an 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 are incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easementsLiens 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, rights-of-waystatutory obligations, restrictions surety and appeal bonds, bids, contracts (other similar encumbrances incurred than for payment of Debt), or leases made in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity and its Subsidiaries taken as a wholebusiness;
(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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value).
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if (i) adequate reserves with respect thereto are maintained;
maintained on the books of Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) in the case of any such charge which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Con- tested Collateral Lien Conditions; (b) carriers', warehousemen's, mechanics', materialmen'slandlords', m▇▇▇▇▇- ▇▇▇▇▇'▇, repairmen's, architects' 's or other like Liens arising in the ordinary course of business in respect of obligations which are not overdue for a period of more than 30 days yet d▇▇▇▇- ▇▇▇▇▇ or which are bonded or which are being contested in good faith and by appropriate proceedingsproceedings if (i) adequate reserves with respect thereto are maintained on the books of Borrower or the relevant Sub- sidiary, as the case may be, in accordance with GAAP and (ii) in the case of any such Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Con- ditions;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's made in the ordinary course of busi- ness in connection with workers' compensation, unemployment insurance and other social security legislation;
; (ed) pledges or deposits to secure the performance of bids, tenders, trade contracts (other than for borrowed money)or government contracts, leases, licenses, statutory obligations, surety and appeal bonds, performance bonds, obligations to secure surety, appeal or performance bonds and contractual utilities for services provided in the ordinary course of business and other obligations of a like nature (in each case, other than for borrowed money) incurred in the ordinary course of business for amounts not yet delinquent or, to the extent such amounts are so delinquent, such amounts are being contested in good faith by appropriate proceedings promptly instituted and not involving diligently conducted if (i) adequate reserves with respect thereto are maintained on the borrowing books of money;
Borrower or the relevant Subsidiary, as the case may be, in accordance with GAAP and (fii) easementsin the case of any such Lien against any of the Collateral such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions; (e) easements (including, without limitation, reciprocal ease- ment agreements), rights-of-way, restrictions building, zoning and similar re- strictions, utility agreements, covenants, reservations, restric- tions, minor encroachments, and other similar minor encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property de- fects or minor imperfections irregularities in title thereto and Liens under leases and subleases whichwhich do not, individually or in the aggregate, are not material materially detract from the value of the Real Property to which it relates or, individually or in amountthe aggregate, and which do not interfere materially in- terfere with or adversely affect in any material respects with respect the ordinary conduct of the business of Infinity Borrower and its Subsidiaries taken as a whole;
on the Real Property subject thereto; (f) Liens in favor of the Administrative Agent and the Lenders pursuant to the Credit Documents, including Liens pursuant to the Credit Documents in respect of Interest Rate Agreements, and bankers' liens arising by operation of law relating thereto; (g) Liens on Property 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity 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 Subsidiaries created solely for the purpose of securing (i) Indebtedness representingpermitted by subsection 8.1(g); (ii) Indebtedness permitted by subsection 8.1(i); (iii) Indebtedness permitted by subsection 8.1(j); (iv) any Capital Lease Obligation permitted pursuant to subsection 8.1(f), as long as such Liens do not extend to or cover assets of Borrower or its Subsidiaries other than the as- sets subject to such Capital Lease Obligation; (v) purchase money indebtedness or floorplan financing obligations that are incurred in connection with the acquisi- tion of Rental Items and game products for resale, as long as Liens are limited to financethe Rental Items and game products so ac- quired and do not extend to or cover other property of Borrower or its Subsidiaries; and (vi) Liens on unearned insurance premiums to the extent permitted by subsection 8.1(l); provided that no such Lien incurred in connection with Indebtedness pursuant to subsection 8.1(g) or 8.1(j) and any refinancing thereof shall extend to or cover other property of Borrower or such Subsidiary other than the respective property so acquired, refinance and the principal amount of Indebtedness secured by any such Lien shall at no time exceed the original purchase price payable by Borrower or refund, all or a part such Subsidiary to acquire such property; (h) Liens existing on the Closing Date after giving effect to the consummation of the cost (including the cost of constructionTransactions and described in subsection 5.13 or Schedule 8.2(h) of such Property or improvements thereonand any refinancing thereof; provided, provided that no such Lien shall extend to or cover any Property other assets or property of Infinity Borrower or such Subsidiary its Restricted Subsidiaries other than the respective Property so acquired and improvements thereon;
assets or prop- erty encumbered by such Lien on the Closing Date; (i) mortgages Liens on Property documents of title and the property covered thereby securing indebtedness Indebtedness in favor respect of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance Commercial L/Cs or other payments pursuant to any contract or provision commercial letters of any statute;
credit; (j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory mortgages, liens, security interests, restrictions, encumbrances or any other matter of Infinity record that have been placed by any developer, landlord or other third party on property over which Borrower or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables has easement rights or on any Leased Property and inventory in an aggregate amount not greater than $400,000,000 less the aggregate amount of Indebtedness that is secured pursuant to clause subordination or similar agreements relating thereto and (ii) belowany condemnation or eminent domain proceedings af- fecting any real property; provided, that (k) leases or subleases or licenses or sublicenses with re- spect to the terms assets or properties of such Indebtedness do not provide for any recourse to Infinity Borrower or any Material Subsidiary of its Subsidi- aries, in each case, entered into in the ordinary course of Bor- rower's or such Subsidiary's business so long as such leases or sub- leases (except i) are subordinate in all respects to the extent Liens granted and evidenced by the Security Documents and, in the case of breaches any lease or sublease affecting any Mortgaged Property, such lease or sublease shall also be entered into in compliance with the provisions of representations the applicable Mortgage and warranties (ii) do not, individually or in the aggre- gate, (A) interfere in any material respect with the ordinary conduct of Infinity the business of Borrower or any of its Subsidiaries or (B) materially impair the use (for its intended purposes) or the value of the assets or property subject thereto; (l) Liens on goods (and proceeds thereof) financed with draw- ings under commercial letters of credit securing reimbursement obli- gations in connection respect of such commercial letters of credit issued in ac- cordance with the terms of this Agreement; (m) [Reserved]; (n) Liens in respect of judgment or awards for which appeals or proceedings for review are being prosecuted and in respect of which a stay of execution upon any such financings and other recourse customary in connection with "off-balance sheet" financingsappeal or proceeding for re- view shall have been secured, provided that (i) and Borrower shall have established adequate reserves for such judgment or awards, (ii) upon such judgment or awards shall be fully insured and the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount insurer shall not greater than $125,000,000;
have denied coverage or (liii) Sale/Leasebacks consummated prior such judgment or awards shall have been bonded 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 satisfaction of the obligations secured Required Lenders; (o) Liens arising from UCC financing statement filings regard- ing operating leases entered into 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 Borrower and 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, Restricted Sub- sidiaries in the ordinary course of business business; (any such Indebtedness, "Specified Section 5.5(np) Indebtedness")) and (ii) Liens arising from licenses of personal property which do not materially interfere with 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 ordinary conduct of the foregoingbusiness of Borrower or any of its Restricted Subsidiaries; provided(q) Liens consisting of rights of set-off of a customary na- ture or bankers' liens on amount of deposit, howeverwhether arising by con- tract or operation of law, thatincurred in the ordinary course of busi- ness so long as such deposits are not intended as collateral for any obligation; (r) Liens granted in favor of a Lender (or any Person who, except at the date of entering into such agreement with Borrower, was an Af- filiate of a Lender) to the extent secure Obligations of Borrower and its Sub- sidiaries in respect of Interest Rate Agreements otherwise permitted by this Section 5.5 (including Section 5.5(n)), the Liens permitted under this paragraph shall Agreement; (s) other Liens securing Indebtedness in an aggregate princi- pal amount not be spread to cover exceed $2,500,000; (t) inchoate Liens for taxes, assessments or governmental charges or levies not yet due and payable or Liens for taxes, assess- ments or governmental charges or levies being contested in good faith and by appropriate proceedings, in each case for which adequate re- serves have been established in accordance with GAAP in the United States (or the equivalent thereof in any additional country in which a Foreign Subsidiary is doing business); and (u) Liens on the Net Proceeds of any Refinancing Indebtedness permitted by subsection 8.1(k) in favor of the trustee or Property escrow agent (other than a substitution in each case for the benefit of like Property debtholders for which such trustee or improvements on escrow agent is acting) referred to in subsection 8.1(k) until such Property Net Proceeds are applied in accordance with such redemp- tion, defeasance or other Property of equivalent valuerepurchase referred to in subsection 8.1(k). 8.3.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit Neither the Borrower nor any of its Material Subsidiaries to, Guarantor shall create, incur, assume or suffer to exist exist, any Lien upon any of its Propertyproperty, assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned present or hereafter acquired; providedfuture, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority securing the Obligations;
(b) Liens for taxes, assessments or charges Taxes not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if (and for the payment of which adequate reserves with respect thereto are maintainedprovided);
(bc) carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or and deposits under worker's made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security legislationlaws or regulations;
(e) pledges easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law 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 arising in the ordinary course of business that do not secure any monetary obligations and do not involving materially detract from the borrowing value of moneythe affected property or interfere with the ordinary conduct of business of the Borrower or any Guarantor;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in any Lien on any property or asset of the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions Borrower or any Guarantor existing on the use date hereof and set forth in Schedule 7.3, provided that (i) such Lien shall not apply to any other property or asset of Property the Borrower or minor imperfections in title thereto any Guarantor and Liens under leases (ii) such Lien shall secure only those obligations which it secures on the date hereof and subleases whichany extensions, in the aggregate, are not material in amount, renewals and which replacements thereof that do not interfere in any material respects with increase the ordinary conduct of the business of Infinity and its Subsidiaries taken as a whole;outstanding principal amount thereof; and
(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 securing Indebtedness permitted under Section 7.1 and not described in Sections 7.3(a) through (f) provided such Liens are or were in existence at subordinated to Liens securing 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments Obligations pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables a subordination agreement in form 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 any Material Subsidiary (except substance satisfactory to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)Lender.
Appears in 1 contract
Limitation on Liens. Infinity (a) Delphi LLP will not, and will not permit any of its Material Subsidiaries Restricted Subsidiary to, createdirectly or indirectly, incur, assume incur or suffer permit to exist any Lien upon (the “Initial Lien”) of any nature whatsoever on any Principal Property or Capital Stock of its Propertya Restricted Subsidiary, whether owned at the Issue Date or thereafter acquired, 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”):
(1) Liens securing Indebtedness under Credit Facilities in an aggregate principal amount not to exceed $2,075 million;
(2) pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws or similar legislation, or enter into any Sale/Leaseback good faith deposits in connection with respect bids, tenders, contracts (other than for the payment of Indebtedness) or leases, subleases, licenses or sublicenses to any which such PropertyPerson is a party, whether now owned or hereafter acquired; provideddeposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety, that stay, customs, replevin or appeal bonds to which such Person is a party, or deposits as security or for the foregoing restrictions shall not apply to:payment of rent, in each case incurred in the ordinary course of business;
(a3) Liens imposed by any Governmental Authority law, such as carriers’, warehousemen’s and mechanics’, materialman’s, repairman’s, landlord’s, ▇▇▇▇▇▇▇’▇, supplier’s and other like Liens, in each case for sums not yet 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 such Person shall then be proceeding with an appeal or other proceedings for review;
(4) Liens for taxes, assessments or other governmental charges not yet due and or payable or subject to penalties for non-payment or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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;
(c5) Liens securing judgments or to perfect an appeal in favor of any order or decree but only to the extent, for an amount and for a period not resulting in an Event issuers 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 surety or performance bonds or letters of credit, bank guarantees, bankers’ acceptances or similar credit transactions issued pursuant to the request of and contractual and other obligations for the account of a like nature incurred such Person in the ordinary course of business and not involving the borrowing of moneyits business;
(f6) easementssurvey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, restrictions sewers, electric lines, telegraph and telephone lines and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of purposes, or zoning restrictions, easements, licenses, or other restrictions on as to the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in incidental to the aggregate, are not material in amount, and which do not interfere in any material respects with the ordinary conduct of the business of Infinity and such Person or to the ownership of its Subsidiaries taken as a wholeproperties 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 such Person;
(g7) 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 Issue Date and 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 the 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));
(9) Liens on Property property or shares of any stock of another Person at the time such other Person becomes a Subsidiary of Infinity or of any Person which is or was merged with or into Infinity or any Subsidiary thereofsuch Person; provided, however, that such Liens are not created, incurred or were assumed in existence connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided further, however, that such Liens do not extend to any other property owned by 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 or became a Subsidiary of Infinity or which do not extend to property transferred to such Person merged with by Delphi LLP 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 a Restricted Subsidiary;
(10) Liens on property at the time of the relevant transaction;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity Person or any of its Subsidiaries to secure Indebtedness resulting from financings acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or any Subsidiary 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) belowPerson; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such acquisition; provided further, however, that the terms of such Indebtedness Liens do not provide for extend to any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity other property owned by such Person or any of its Subsidiaries in connection with such financings other than proceeds or products thereof and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000accessions thereto;
(l11) Sale/Leasebacks consummated prior Liens securing Indebtedness or other obligations of Delphi LLP or a Subsidiary owing to the Closing DateDelphi LLP or a Subsidiary of Delphi LLP;
(m12) Liens to secure any Sale/Leaseback of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m);
Refinancing (nor successive Refinancings) additional Liens upon real and/or personal propertyas a whole, 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 any Indebtedness secured by any Lien referred to Infinity or any of its Subsidiaries, in the ordinary course of business foregoing clauses (any such Indebtedness7), "Specified Section 5.5(n) Indebtedness")(9) 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 foregoing10); 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, except 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 extent 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 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 permitted be available to secure Indebtedness, Liens securing Indebtedness originally secured pursuant to this clause (15) may secure Refinancing Indebtedness in respect of such Indebtedness and such Refinancing Indebtedness shall be deemed to have been secured pursuant to this clause (15).
(b) Any Lien created for the 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 5.5 5.01, (including Section 5.5(n)), the Liens permitted under this paragraph shall A) a Lien securing an item of Indebtedness need not be spread permitted solely by reference to cover one category of permitted Liens described in the definition of “Permitted Liens” but may be permitted in part under any additional combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or Property 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 (other than a substitution or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of like Property such Lien or improvements on such Property 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 other Property existing pursuant to only one of equivalent value)such clauses.
Appears in 1 contract
Sources: Second Supplemental Indenture (Delphi Automotive PLC)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Significant Subsidiaries to, to create, incur, assume incur or suffer permit to exist any Lien upon any of its Property, on or enter into any Sale/Leaseback with respect to any property or asset of the Company or any such PropertySignificant Subsidiary, whether now owned or held or hereafter acquired; provided, that or any income or profits therefrom (unless it makes, or causes to be made, effective provision whereby the foregoing restrictions Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall not apply tohave 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 imposed by any Governmental Authority for taxes, assessments taxes or other governmental charges that are not yet due and payable or the payment of which are being contested in good faith and is not at the time required by appropriate proceedings if adequate reserves with respect thereto are maintainedSection 9.4;
(b) carriers'any attachment or judgment or similar Lien, warehousemen'sunless the judgment it secures shall not, mechanics'within 90 days after the entry thereof, materialmen'shave been discharged or execution thereof stayed pending appeal, repairmen's, architects' or other like Liens arising in shall not have been discharged within 60 days after the ordinary course expiration 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 proceedingsany such stay;
(c) Liens securing judgments incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums not overdue or being contested in good faith by appropriate proceedings) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default secure statutory obligations (including obligations under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workers 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, surety or appeal bonds or performance bonds and contractual and other obligations of a like nature Liens incurred in the ordinary course of business and not involving in connection with the borrowing of money;
(fd) leases or subleases or licenses or sublicenses granted to others, easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property charges or minor imperfections in title thereto and Liens under leases and subleases whichencumbrances, in each case incidental to the aggregate, are not material in amount, and which do not interfere in any material respects with ownership of property or assets or the ordinary conduct of the business of Infinity the Company or any of its Significant Subsidiaries, or Liens incidental to minor survey exceptions and its Subsidiaries taken the like, provided that such Liens do not, in the aggregate, interfere in any material respect with the ordinary conduct of business of the Company or any Significant Subsidiary;
(e) Liens securing Debt of a Significant Subsidiary to the Company or to a Subsidiary Guarantor;
(f) Liens existing as a wholeof the Closing Date and reflected in Schedule 10.5;
(g) Liens on Property arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or the applicable Significant Subsidiary in excess of Infinity or of any Person which those set forth by regulations promulgated by the FRB and (ii) such deposit account is or was merged with or into Infinity not intended by the Company or any Subsidiary thereof; provided, that to provide collateral to 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 transactiondepository institution;
(h) Liens upon real and/or personal incurred after the Closing Date given to secure the payment of the purchase price incurred in connection with the acquisition, construction or improvement of property acquired (by purchaseother than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Significant Subsidiary, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiaries, each of which including Liens either (A) existed existing on such Property before property at the time of its acquisition and was not created in anticipation acquisition, construction or improvement thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (Bi) was created the Lien shall attach solely for to the purpose property acquired, purchased, constructed or improved; (ii) at the time of securing Indebtedness representingacquisition, construction or improvement of such property (or, in the case of any Lien incurred to financewithin three hundred sixty-five (365) days of such acquisition or completion of such construction or improvement, refinance or refund, all or a part at the time of the cost incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property shall not exceed the lesser of (including y) the cost of constructionsuch acquisition, construction or improvement or (z) the Fair Market Value of such Property property (as determined in good faith by one or improvements thereonmore officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company); providedand (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist; provided that no individual financings provided by one Person (or an Affiliate thereof) may be cross-collateralized to other financings provided by such Lien shall extend to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired Person and improvements thereonits Affiliates;
(i) mortgages any Lien existing on Property securing indebtedness property of a Person immediately prior to its being consolidated with or merged into the Company or a Significant Subsidiary, or any Lien existing on any property acquired by the Company or any Significant Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) no such Lien shall have been created or assumed in favor contemplation of such consolidation or merger or such Person’s becoming a Significant 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 United States of America instrument originally creating such Lien, other property which is an improvement to or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred is acquired for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages specific use in connection with pollution controlsuch acquired property, industrial revenue and (iii) at the time of such incurrence and after giving effect thereto, no Default or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision Event of any statuteDefault would exist;
(j) Liens securing Indebtedness owed to Infinity any refinancings, extensions, renewals or to replacements of any Wholly Owned Subsidiary Lien permitted by the preceding subparagraphs (f), (h) and (i) of Infinitythis Section 10.5, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(k) Liens securing Securitization Obligations; and
(l) other Liens securing outstanding obligations not at any time exceeding the greater of (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) 40,000,000 and (ii) upon 5% of the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of consolidated tangible assets of Infinity owned on the Closing Date Company 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 determined as of the foregoing; provided, however, that, except last day of the fiscal quarter most recently then ended. Any Lien permitted above on any property may extend 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 identifiable proceeds of like Property or improvements on such Property or other Property of equivalent value)property.
Appears in 1 contract
Limitation on Liens. Infinity will The Obligors shall not, and will shall not permit any of its Material the other Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Propertyproperty, whether now owned or hereafter acquired; provided, that or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, other than the foregoing restrictions shall not apply to:following Liens ("Permitted Liens"):
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable (or, in the case of real property taxes, not yet delinquent) or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained in accordance with GAAP on the books of such Person, provided that enforcement of any such Lien shall be stayed during the period while such proceedings are pending and continuously for 15 days after the conclusion of such proceedings;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 45 days or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained in accordance with GAAP on the books of such Person, provided that enforcement of any such Lien shall be stayed during the period while such proceedings are pending and continuously for 15 days after the conclusion of such proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits of cash and Liens on other assets (provided that such Liens shall not cover any such other assets not necessary to enable the secured party to perform the relevant obligations of the debtor) to secure the performance of bids, trade contracts (other than for borrowed money), leases (other than capital leases), statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property property or minor imperfections in the title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and any member of the Chemco Group that shall have an interest in, or in the conduct of its Subsidiaries taken as a wholebusiness shall use, such property;
(f) broker's Liens securing the payment of commissions in the ordinary course of business;
(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 created pursuant to this Agreement and 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 transactionSecurity Documents;
(h) Liens upon real and/or personal created to secure purchase money obligations and Capital Lease Obligations incurred in connection with the acquisition of the property subject to such Liens, and Liens on assets existing when such assets are acquired (and not imposed in Credit Agreement contemplation of acquisition), to the extent such obligations are permitted 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 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, 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 thereonSection 6.06(e);
(i) mortgages on Property securing indebtedness Liens in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision respect of any statuteQualified Securitization Program;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityon property on deposit in an escrow in connection with a Disposition that is permitted hereunder;
(k) Liens on the proceeds of the issuance of the Required Senior Subordinated Debt that are deposited in escrow pursuant to the Required Senior Subordinated Debt Documents and which shall be used solely to prepay the ISP 2002 Notes;
(il) upon Liens securing the receivables and inventory obligations of Infinity or any of its Subsidiaries ISP Freetown Fine Chemicals Inc. owing to secure Indebtedness resulting from financings of such receivables and inventory General Electric Capital Corporation, in an aggregate amount not greater than exceeding $400,000,000 less the aggregate amount 56,050,000, under an operating lease of Indebtedness that is secured pursuant to clause (ii) belowcertain property located at Freetown, Massachusetts; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;and
(m) any Sale/Leaseback of assets of Infinity owned Liens existing on the Closing Effective Date and listed on Schedule 5.5(m);
(n) additional Liens upon real and/or personal propertyII, and additional Sale/Leasebacks; provided, that the sum of (i) the securing obligations in an aggregate principal amount of the obligations secured by as to all 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 exceeding $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 such Property or other Property of equivalent value)6,000,000.
Appears in 1 contract
Sources: Credit Agreement (Isp Minerals LLC)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Recourse Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertytheir properties, assets (including shares of stock) or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges or claims which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) Liens of landlords, laborers and employees arising by operation of law and suppliers’, carriers'’, warehousemen'swarehousemens’, mechanics'’, materialmen'smaterialmens’, repairmen's, architects' repairmens’ or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 45 days or or, if more than 45 days overdue, 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislation; provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the Security Documents or any of the Unpledged International Property;
(ed) pledges or deposits to secure the performance of tenders, bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, stay, surety and appeal or bonds, performance bonds bonds, performance and contractual completion guarantees and other obligations of a like nature incurred in the ordinary course of business (including those to secure health, safety and not involving environmental obligations); provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the borrowing Security Documents or any of moneythe Unpledged International Property;
(fe) easements, reservations, licenses, rights-of-way, zoning restrictions and covenants, conditions and restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, or title defects or other restrictions on as to the use of Property real properties or minor imperfections in title thereto and Liens under leases and subleases incidental to the conduct of the business of such Person or to the ownership of its properties which, in the aggregate, are not material in amount, and which do not materially detract from the use of the property subject thereto or materially interfere in any material respects with the ordinary conduct of the business of Infinity 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity Company 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 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;
(if) mortgages on Property securing indebtedness Liens in favor of the United States of America for amounts paid by the Company or any state thereof of its Subsidiaries as progress payments under government contracts entered into by them; provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any department, agency or instrumentality or political subdivision of the United States Unpledged International Property;
(g) Liens existing on the date of America this Agreement as set forth in Schedule 11.3(g);
(h) Liens under the Security Documents (including, without limitation, Liens which secure Designated Eligible Obligations as provided for in the Intercreditor Agreement) or any state thereof, incurred for the purpose of financing other Lien securing all or any part portion of the purchase price Payment Obligations, the Multi-Currency Payment Obligations or any refinancings thereof permitted by Sections 2.7, 11.2(a) or11.2(s), or Designated Eligible Obligations or Multi-Currency Eligible Obligations, in each case, as provided for in the cost Intercreditor Agreement or other applicable intercreditor agreement contemplated hereunder as a condition to the incurrence of construction of the Property subject to such mortgages Indebtedness;
(including without limitation such debt secured by such mortgages i) attachment, judgment, order or other similar Liens arising in connection with pollution controlcourt or arbitration proceedings; provided, industrial revenue however, that the same are being contested in good faith and any appropriate legal proceedings which may have been duly initiated for the review of such judgment or similar financings) Lien shall not have been finally terminated or incurred to secure progressthe period within which such proceedings may be initiated shall not have expired and, advance or other payments pursuant to any contract or provision in each case, shall not otherwise constitute an Event of any statuteDefault under Section 12.1(k);
(j) other Liens securing incidental to the conduct of the business of the Company and its Subsidiaries or the ownership of any of their assets not incurred in connection with Indebtedness owed to Infinity or to Contingent Obligations, which Liens do not in any Wholly Owned Subsidiary case materially detract from the value of Infinitythe property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries; provided, however, that no such Lien shall encumber any Collateral under any Security Document or any of the Unpledged International Property;
(k) Liens securing any Indebtedness permitted by Section 11.2(d) or any Liens replacing such permitted Liens; provided, however, that (i) upon no such Lien shall encumber any asset of the receivables Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property and inventory (ii) any such Lien which secures reimbursement obligations under letters of Infinity credit not issued under the Multi-Currency Credit Agreement shall be limited to (A) the assets acquired or shipped with the support of such letter of credit and (B) any assets of a Foreign Subsidiary which are in the care, custody or control of such issuer of such letter of credit in the ordinary course of business;
(l) Liens securing any Indebtedness permitted by Section 11.2(g), Section 11.2(h) or obligations of any Foreign Subsidiary or a foreign branch of any Domestic Subsidiary principally doing business outside of the United States in respect of treasury, depository, overdraft and other cash management arrangements maintained with any Lender, any Multi-Currency Lender, any Affiliate of a Lender or a Multi-Currency Lender or any other Person reasonably acceptable to the Administrative Agent or any Liens replacing such permitted Liens; provided, however, that no such Lien shall encumber any asset of the Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property;
(m) Liens in the nature of counterpart deposits or pledges of cash deposits of the Company 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 Foreign Subsidiaries of the aggregate amount Company or a foreign branch of a Domestic Subsidiary principally doing business outside of the United States, which Indebtedness that is secured permitted pursuant to clause Section 11.2(k)); provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any of the Unpledged International Property;
(n) Liens in favor of securities intermediaries, commodity intermediaries, brokers and dealers arising in connection with the acquisition or disposition of investments of the type permitted by Section 11.8; provided, however, that such Liens (i) attach only to such investments and (ii) belowsecure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such investments and not any obligation in connection with margin financing; and provided, further, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except Liens attach only to the extent property of breaches of representations and warranties of Infinity the Company or its Subsidiary, as the case may be, for whose account any such obligations have been incurred;
(o) Liens granted by the Company or any of its Subsidiaries in connection with (including the interest of a lessor under a Capital Lease and Liens to which any property is subject at the time, on or after the date hereof, of the Company’s or such financings and other recourse customary in connection with "off-balance sheet" financingsSubsidiary’s acquisition thereof) securing Indebtedness permitted under Section 11.2(l) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity limited, in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior each case, to the Closing Date;
property the acquisition, development, purchase, lease, repair, addition or improvement of which is financed or reimbursed with the proceeds of such Indebtedness or subject to such Capital Lease (m) any Sale/Leaseback or proceeds thereof or additional property in the nature of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(mimprovements thereto);
(np) additional Liens upon real and/or personal property, and additional Sale/Leasebacksin the nature of counterpart deposits or pledges of cash deposits of the Company or any of its Subsidiaries to secure Indebtedness permitted pursuant to Section 11.2(m); provided, however, that the sum amount of any such deposit does not exceed the amount of the Indebtedness it secures;
(q) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(b);
(r) [Intentionally Omitted.];
(s) Liens (A) on the assets or property (including shares of Capital Stock) of a Subsidiary of the Company existing (or required pursuant to agreements existing) at the time such Subsidiary became a Subsidiary of the Company or (B) on any property at the time the Company or a Subsidiary of the Company acquired such property (including any acquisition by means of a merger or consolidation with or into the Company or any Subsidiary of the Company) in each case not incurred or created in connection with or in anticipation of such Subsidiary becoming a Subsidiary of the Company or such acquisition; provided, however, that such Liens do not extend to or cover any other property or assets of the Company or any of its Recourse Subsidiaries other than the proceeds of the assets or property described in clause (A) or (B) above and any improvements thereto or as otherwise permitted under this Section 11.3;
(t) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(u) Liens that are contractual rights of set-off and other Liens arising as a matter of law (i) relating to the aggregate principal amount establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any Recourse Subsidiary to permit satisfaction of overdraft or similar obligations secured incurred in the ordinary course of business of the Company and its Recourse Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Company, the Company or any Recourse Subsidiary in the ordinary course of business;
(v) Liens on inventory or equipment of the Company or any Subsidiary granted in the ordinary course of business to the Company’s client or customer at which such inventory or equipment is located;
(w) Liens arising from precautionary UCC financing statement filings (or similar filings under other applicable law) regarding leases entered into by such the Company or any Subsidiary in the ordinary course of business;
(x) Liens on Receivables and Related Assets incurred in connection with a Receivables Facility (other than Indebtedness as defined the Capital Stock of any Receivables Subsidiary);
(y) leases, licenses, subleases and sublicenses of property granted by the Company and its Subsidiaries in clause (f) the ordinary conduct of the definition thereof which has not been assumed by Infinity business of the Company or any of its Subsidiaries and where which do not secure any Indebtedness;
(z) Liens securing Indebtedness in respect of Permitted Refinancings permitted under Section 11.2 to the extent such Liens are permitted under clause (g) of the definition of “Permitted Refinancing”;
(aa) Liens granted in favor of issuers of documentary or trade letters of credit for the account of the Company or such Subsidiary or bankers’ acceptances, which Liens secure the reimbursement obligations of the Company or such Subsidiary on account of such letters of credit or bankers’ acceptances; provided that each such Lien relates is limited to Property (i) the assets acquired by Infinity 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;
(bb) Liens on (i) the net proceeds of the incurrence of Indebtedness to secure any redemption, repurchase or defeasance obligations in respect of such Indebtedness or any other Indebtedness being refinanced with the proceeds of its Subsidiaries such Indebtedness and (ii) any additional cash to secure such redemption, repurchase or defeasance obligations in satisfactionan amount which, in whole when added to such net proceeds, is necessary to effect such redemption, repurchase or in part, of indebtedness to Infinity or any of its Subsidiaries, defeasance;
(cc) deposits 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; andsecure liability to insurance carriers;
(odd) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 11.2; provided that such Liens do not extend to any extension, renewal assets other than those assets that are the subject of such repurchase agreement;
(ee) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(o) or replacement of the foregoingSection 11.2(p); provided, however, that, except after giving effect to such Liens (and any Permitted Acquisition consummated in connection therewith, whether prior to or concurrently with such incurrence of such Liens), as of the extent otherwise last day of the most recent four consecutive fiscal quarters with respect to which financial statements shall have been delivered pursuant to Section 10.1, (i) the Company is in pro forma compliance with Section 11.1 and (ii) the Company’s Senior Secured Leverage Ratio, calculated on a pro forma basis, is less than 5.5 to 1.0; and
(ff) additional Liens securing obligations which, together with all other obligations secured by Liens (excluding Liens permitted by this Section 5.5 clauses (including Section 5.5(n)), a) through (ee) above) at the Liens permitted under this paragraph shall time of determination do not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)exceed $15,000,000.
Appears in 1 contract
Sources: Term Loan Agreement (Revlon Consumer Products Corp)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies, or other statutory obligations, not yet due and payable at the time delinquent or which that are being contested in good faith and by appropriate proceedings if (provided, that adequate reserves with respect thereto to such proceedings are maintainedmaintained on the books of Mid-Holdings or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) carriers'’, warehousemen's’s, landlords’, mechanics'’, contractors’, materialmen's’s, repairmen's, architects' ’s or other like Liens imposed by law or arising in the ordinary course of business which secure amounts that are not overdue for a period of more than 30 60 days or which if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, or that are being contested in good faith and by appropriate proceedingsproceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of the Group Members in conformity with GAAP), (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and (iii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such other goods in the ordinary course of business;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(di) pledges or deposits under worker's in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any Group Member;
(ed) pledges Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory obligations to secure obligations, surety, stay, customs and appeal or bonds, performance bonds and contractual and/or return of money bonds, completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business;
(e) easements, rights-of-way, covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property), encroachments, protrusions and other similar encumbrances and title defects incurred in the ordinary course of business that, in the aggregate, do not materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of the Group Members taken as a whole; provided, that none of the foregoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereof (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereof, (y) disclosed on any title insurance policies obtained on Mortgaged Properties in connection with Mortgages executed and delivered after the date hereof or (z) that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the obligations secured or benefited by such Liens is permitted by Section 6.2;
(g) Liens securing Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility, Replacement Facility or Extended Term Loans);
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of Mid-Holdings after the date hereof (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted by Section 6.2(g) or is Refinancing Indebtedness in respect thereof and (ii) such Liens cover solely the Property so acquired or the Property of the Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto);
(l) Liens securing (x) Indebtedness permitted under Section 6.2(h) or any Refinancing Indebtedness in respect thereof, (y) obligations arising under any Specified Hedge Agreements (as defined in the ABL Credit Agreement) entered into not for speculative purposes or (z) Cash Management Obligations (as defined in the ABL Credit Agreement) in the ordinary course of business; provided, that the relative Lien priority thereof is set forth in the Intercreditor Agreements;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the borrowing case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(fp) easementslicenses and sublicenses of Intellectual Property granted by any Group Member in the ordinary course of business;
(q) UCC financing statements, rightsPPSA financing statements or similar public filings that are filed as a precautionary measure in connection with operating leases or consignment of goods in the ordinary course of business;
(r) Liens on property rented to, or leased by, any Group Member pursuant to a Sale and Leaseback Transaction; provided, that (i) such Sale and Leaseback Transaction is permitted by Section 6.10, (ii) such Liens do not encumber any other property of Mid-Holdings or its Restricted Subsidiaries and the proceeds and products of and accessions to such property, and (iii) such Liens secure only the Attributable Indebtedness incurred in connection with such Sale and Leaseback Transaction;
(s) Liens on the assets of Non-Loan Party Subsidiaries that secure (i) Indebtedness of Non-Loan Party Subsidiaries permitted pursuant to Section 6.2 (and related obligations) or (ii) obligations of Non-Loan Party Subsidiaries other than Indebtedness and incurred in the ordinary course of business;
(i) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt, or any Incremental Equivalent Debt, and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of. any of the foregoing, and (ii) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt or Incremental Equivalent Debt (in each case, as defined in the Senior Lien Credit Agreement as in effect as of the date hereof) and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of, any of the foregoing;
(u) good ▇▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made in connection with a Permitted Acquisition or any other Investment (other than Investments under Section 6.7(q)) or letter of intent or purchase agreement permitted hereunder;
(v) Liens not otherwise permitted by this Section 6.3 so long as the aggregate amount of obligations secured thereby does not exceed the greater of $48.0 million and 3.60% of Consolidated Total Assets at the time of incurrence thereof;
(w) Liens securing Refinancing Indebtedness permitted by Section 6.2(v) (and related obligations) if such Liens are permitted to secure such Indebtedness in accordance with the definition of “Refinancing Indebtedness”;
(x) Liens in favor of Mid-wayHoldings, restrictions the Borrower or any Subsidiary Guarantor securing intercompany Indebtedness permitted hereunder;
(y) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 6.7 to be applied against the purchase price for such Investment or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 6.5, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(i) Liens deemed to exist in connection with Investments in repurchase agreements under Section 6.7; provided, that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement, and (ii) reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(aa) Liens that are customary contractual rights of setoff relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business;
(bb) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar encumbrances agreements entered into in the ordinary course of business of the Group Members;
(cc) ground leases in respect of real property on which facilities owned or leased by any Group Member are located;
(dd) Liens on Permitted Receivables Financing Assets securing any Permitted Receivables Financing; and
(ee) Liens securing obligations in respect of trade-related letters of credit permitted under Section 6.2 and incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Group Members and covering the goods (or the documents of Infinity 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 title 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 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 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, all or a part of the cost (including the cost of construction) respect 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;
(igoods) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured financed by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision letters of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon credit and the receivables proceeds 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)products thereof.
Appears in 1 contract
Sources: Junior Lien Term Loan Credit Agreement (Forterra, Inc.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings; provided that adequate reserves with respect thereto are maintainedmaintained on the books of such LoanCredit Party, in conformity with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s Liens, or other like similar Liens arising in the ordinary course of business which are not overdue for a period of more than 30 60 days or which are being contested in good faith and by appropriate proceedingsproceedings or which have been bonded over or otherwise adequately secured against;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation or in connection with casualty insurance;
(ed) pledges deposits or deposits bonds to secure (i) the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or performance bonds and contractual (ii) indemnities, performance and similar bonds and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(e) Permitted Cash Management Liens;
(f) easements, rights-of-way, restrictions and other similar encumbrances title exceptions and encumbrances, landlords’ and lessors’ Liens on rented premises and restrictions on transfers of leases, each incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, secure obligations that do not constitute Indebtedness, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholethe LoanCredit Parties;
(g) Liens on Property arising from precautionary or unauthorized Uniform Commercial Code or PPSA financing statements or applications for registration of any Subsidiary a hypothec under the Register of Infinity or Personal and Movable Real Rights (Quebec) under the Civil Code 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 transactionQuebec;
(h) Liens 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 created pursuant to the time of its acquisition Security Documents 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, 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 thereonLoan Documents;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteFirst Purchaser Liens;
(j) Liens securing Indebtedness netting and other offset rights granted by any LoanCredit Party to counterparties under Commodity Contracts and Financial Hedging Agreements on or with respect to payment and other obligations owed by such LoanCredit Party to Infinity or to any Wholly Owned Subsidiary of Infinitysuch counterparties;
(k) Liens (i) upon in existence on the receivables Restatement Effective Date that are listed, 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; providedproperty subject thereto described, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000on Schedule 8.3;
(l) Sale/Leasebacks consummated prior to Liens on cash and short-term investments deposited as collateral by a LoanCredit Party under any Commodity Contract or Financial Hedging Agreement with the Closing Datecounterparty (or counterparties) thereto;
(m) any Sale/Leaseback Liens securing judgments for the payment of assets money not constituting an Event of Infinity owned on the Closing Date and listed on Schedule 5.5(m)Default under Section 9.1(i) or securing appeal or other surety bonds related to such judgments;
(n) additional Liens upon of thean account bank on currency, Cash Equivalents, commodities or Commodities Contracts of the Loan PartiesWintergreen or ▇▇▇▇▇▇▇ Resources Canada, deposited in, or credited to, any Controlled Account that are subject to an Aaccount Control Agreementwith such account bank; provided that, such Liens are specifically permitted by such Account Control Agreement or arise by operation of law;
(o) Liens securing Indebtedness of the LoanCredit Parties permitted by Section 8.2(f); provided that such Liens do not at any time encumber any property other than the inventory, forward contracts and receivables related to the Cash and Carry Transactions financed by such Indebtedness;
(p) Liens securing Indebtedness of the LoanCredit Parties permitted by Section 8.2(g) on the property being financed by such Indebtedness and proceeds of such property;
(q) restrictions under federal, provincial, territorial and state securities laws on the transfer of securities;
(r) Liens constituting purchase money security interests (including mortgages, conditional sales, Financing Leases and any other title retention or deferred purchase devices) in real and/or personal property, and additional Sale/Leasebacksinterests in leases or personal property existing or created on the date on which such property is acquired; provided, however, that the sum of (i) each such security interest shall attach solely to the aggregate particular item of property so acquired, and the principal amount of Indebtedness secured thereby shall not exceed the obligations cost (including all such Indebtedness secured by such Liens (other than Indebtedness as defined in clause (fthereby, whether or not assumed) of the definition thereof which has not been assumed by Infinity or any such item 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")) property; and (ii) the aggregate Sale/Leaseback Attributable Debt Indebtedness secured thereby was incurred, and permitted, pursuant to Section 8.2(c);
(s) Liens securing the Maine Dock Liability Obligations in connection with respect the incurrence of such liability; provided, however, that such Lien shall attach solely to such Sale/Leasebacks shall the property acquired; and
(t) Liens on assets not included in the U.S. Borrowing Base or the Kildair Borrowing Base securing obligations of the Loan Parties in an amount not to exceed $125,000,000 2,500,000 in the aggregate at any one time outstanding; and
(o) any extension, renewal or replacement of the foregoing; provided, however, that, except . Notwithstanding anything to the extent otherwise permitted by contrary contained in this Section 5.5 Agreement or any Security Document (including Section 5.5(n)any provision for, reference to, or acknowledgement of, any Lien or Permitted Borrowing Base Lien or Permitted Cash Management Lien), nothing herein and no approval by the Liens permitted under this paragraph Administrative Agent or Lenders of any Lien, Permitted Borrowing Base Lien or Permitted Cash Management Lien (whether such approval is oral or in writing) shall not be spread construed as or deemed to cover constitute a subordination by the Administrative Agent or the Lenders of any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property security interest or other Property right, interest or Lien in or to the Collateral or any part thereof in favor of equivalent value)any Lien, Permitted Borrowing Base Lien or Permitted Cash Management Lien or any holder of any Lien, Permitted Borrowing Base Lien or Permitted Cash Management Lien.
Appears in 1 contract
Limitation on Liens. Infinity The Public Hub Company will not, and will not permit any of its Material Subsidiaries Restricted Subsidiary to, create, create or incur, assume or suffer to exist be incurred or to exist, any Lien upon any of on its Property, or enter into any Sale/Leaseback with respect to any such Propertytheir property or assets, whether now owned or hereafter acquired; provided, that or upon any income or profits therefrom, or transfer any property for the foregoing restrictions shall not apply topurpose 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 imposed arising by any Governmental Authority for statute in connection with worker's compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments assessments, statutory obligations or other similar charges and Liens in the nature of good faith cash deposits in connection with tenders, contracts or leases to which the Public Hub Company or any of its Restricted Subsidiaries is a party or other cash deposits required to be made in the ordinary course of business, PROVIDED in each case that the obligation is not yet for borrowed money and that the obligation secured is not overdue 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, landlord's, carriers' and other similar Liens arising in the ordinary course of business with respect to obligations which are not due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in which prevent enforcement of 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 proceedingsmatter under contest;
(c) Liens the pledge of assets for the purpose of securing judgments an appeal, stay or to perfect an appeal discharge in the course of any order or decree but only to legal proceeding, PROVIDED that the extentaggregate amount of liabilities of the Public Hub Company and its Restricted Subsidiaries secured by a pledge of assets permitted under this subsection, for an amount including interest and for a period penalties thereon, if any, shall not resulting be in an Event excess of Default under paragraph $1,000,000 at any one time outstanding or, if in excess of $1,000,000, is secured by assets (hincluding cash) of Article VInot at any time exceeding $1,000,000 in value;
(d) pledges or deposits under workerbanker's compensation, unemployment insurance Liens and other social security legislationsimilar Liens (including set-off rights) in respect of bank deposits;
(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 retained interest of a like nature incurred lessor in the ordinary course of business and not involving the borrowing of moneyconnection with any lease;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects with materially detract from the ordinary conduct value of the business of Infinity and its Subsidiaries taken as a wholeproperty subject thereto;
(g) Liens existing as of the date of the Closing and described on Property SCHEDULE 5.15 hereto;
(h) Liens created or incurred after the date of any Subsidiary the Closing given to secure the payment of Infinity the purchase price incurred in connection with the acquisition or purchase or the cost of construction of property or of any Person which is assets useful and intended to be used in carrying on the business of the Public Hub Company or was merged with a Restricted Subsidiary, including Liens existing on such property or into Infinity or any Subsidiary thereof; provided, that such Liens are or were in existence assets at the time such Person becomes of acquisition thereof or became a Subsidiary at the time of Infinity or such Person merged with or into Infinity or any Subsidiary thereofcompletion of construction, as the case may be, whether or not such existing Liens were not 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 in anticipation thereof other than to finance or incurred within six months of the date of acquisition or purchase thereof and are not spread to cover any Property other than or completion of construction, as the Property covered case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the relevant transaction;
(h) aggregate amount remaining unpaid on all Debt secured by Liens 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 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 its acquisition and was not created or purchase (as determined in anticipation thereof or (B) was created solely for good faith by the purpose Board of securing Indebtedness representing, or incurred to finance, refinance or refund, all or a part Directors of the cost (including the cost of constructionPublic Hub Company) 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction on the date of completion thereof, and (iv) at the Property subject to such mortgages (including without limitation such debt time of creation, issuance, assumption, guarantee or incurrence of any Debt secured by such mortgages in connection with pollution controlLien and after giving effect thereto and to the application of the proceeds thereof, industrial revenue no Default or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision Event of any statute;Default would exist; and
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon Liens created or incurred after the receivables and inventory date of Infinity the Closing given to secure Debt of the Public Hub Company or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables and inventory Restricted Subsidiary 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 any Material Subsidiary (except addition to the extent Liens permitted by the preceding clauses (a) through (f) hereof; PROVIDED that at the time of breaches creation, issuance, assumption, guarantee or incurrence of representations the Debt secured by such Lien and warranties after giving effect thereto and to the application of Infinity the proceeds thereof, (i) no Default or any Event of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) Default would exist and (ii) upon Consolidated Priority Debt (including the Property of Infinity Priority Debt then to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(lbe created or incurred) 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 would not exceed $125,000,000 at any one time outstanding; and
(o) any extension, renewal or replacement 15% 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 such Property or other Property of equivalent value)Consolidated Net Worth.
Appears in 1 contract
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any Principal Property or upon the stock, membership interests, partnership interests or other equity ownership interests of its Propertyany Subsidiary of US Borrower (other than Unrestricted Subsidiaries), or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following (“Permitted Liens”):
(a) Liens securing (i) on a pari passu basis, the Obligations and (ii) if required, any related interest hedge rate agreements;
(b) Intentionally deleted;
(c) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 is being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal , if necessary, for which adequate reserves are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting Restricted Person in an Event of Default under paragraph (h) of Article VIaccordance with GAAP;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(e) pledges 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, if necessary, by appropriate proceedings, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(f) Liens on cash and Cash Equivalents under or with respect to accounts with brokers or counterparties with respect to hedging contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing only hedging contracts;
(g) deposits of cash or securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fh) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property in respect 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 transactionoperating leases;
(hj) Liens upon real and/or personal any property or assets directly or indirectly acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed); and improvements thereon;
any extension, renewal, refinancing, refunding or replacement (i) mortgages on Property securing indebtedness or successive extensions, renewals, refinancings, refundings or replacements), in favor whole or part, of the United States of America foregoing, provided, however, that such Liens shall not cover or secure any state thereof additional Indebtedness, obligations, property or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityasset;
(k) Liens (i) upon the receivables and inventory of Infinity rights reserved to or vested in 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 governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such Indebtedness do not provide for any recourse right, power, franchise, grant, license or permit or to Infinity condemn or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity acquire by eminent domain or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000similar process;
(l) Sale/Leasebacks consummated prior 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 Dateproperties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws;
(m) rights reserved to the grantors of any Sale/Leaseback properties of assets any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of Infinity owned on the Closing Date and listed on Schedule 5.5(m)any rights-of-way agreements, contracts or other agreements therewith;
(n) additional inchoate Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.1;
(io) the Liens securing obligations in an aggregate principal amount not to exceed at any time outstanding 10% of US Borrower’s Consolidated Tangible Net Worth; and
(p) Liens related to the obligations secured by such Liens extension, renewal, refinancing, refunding or replacement (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 successive extensions, renewals, refinancings, refundings or any of its Subsidiaries in satisfactionreplacements), in whole or in part, of indebtedness to Infinity or any of its Subsidiariesclauses (a), in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")b) 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 foregoingthis Section 7.2; provided, however, that, except to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), the that such Liens permitted under this paragraph shall not be spread to cover or secure any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Indebtedness.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and nor will not it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens created pursuant to 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 be repaid with the proceeds of such Loans, as indicated on said Schedule I);
(c) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if if, unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintainedmaintained on the books of the Company or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(bd) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) proceedings and Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, extent for an amount and for a period not resulting in an Event of Default under paragraph (hSection 10(h) of Article VIhereof;
(de) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(ef) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fg) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of Infinity and the Company or any of its Subsidiaries taken as a wholeSubsidiaries;
(gh) Liens on Property of any corporation which becomes a Subsidiary of Infinity or the Company after the date of any Person which is or was merged with or into Infinity or any Subsidiary thereof; providedthis Agreement, provided that such Liens are or were in existence at the time such Person corporation becomes or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereof, as the case may be, Company and 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 transactionthereof;
(hi) Liens upon real and/or tangible personal property Property acquired after the date hereof (by purchase, construction, foreclosure, deed in lieu of foreclosure construction or otherwise) by Infinity the Company 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 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 thereonProperty; provided, provided that no such Lien shall extend to or cover any Property of Infinity the Company or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor ; and provided, further, that the principal amount of Indebtedness secured by any such Lien shall at no time exceed 80% of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision fair market value (as determined in good faith by a senior financial officer of the United States Company) of America such Property at the time it was acquired (by purchase, construction or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteotherwise);
(j) any Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityspecifically approved by the Lender in writing;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000any Unrestricted Subsidiaries;
(l) Sale/Leasebacks consummated prior to Liens incurred in connection with any Capital Lease Obligations, provided that the Closing Dateaggregate Indebtedness secured thereby and incurred on and after the date hereof shall not exceed $10,000,000 in the aggregate at any one time outstanding;
(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 propertyProperty created after the date hereof, and additional Sale/Leasebacks; provided, provided that the sum of (i) aggregate Indebtedness secured thereby and incurred on and after 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 date hereof shall not exceed $125,000,000 500,000 in the aggregate at any one time outstanding; and
(on) 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)), that the Liens permitted under this paragraph hereunder shall not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent valueProperty).
Appears in 1 contract
Sources: Credit Agreement (Agency Com LTD)
Limitation on Liens. Infinity will The Parent Borrower shall not, and will shall not permit any of its Material Subsidiaries Restricted Subsidiary to, createdirectly or indirectly, incur, assume create or suffer permit to exist any Lien upon on any of its Property, property or enter into any Sale/Leaseback with respect to any such Propertyassets, whether now owned or hereafter acquired; provided, that securing any Indebtedness, except for the foregoing restrictions shall not apply tofollowing Liens:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges not yet due delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on the Parent Borrower and payable its Restricted Subsidiaries or which that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Parent Borrower or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, landlords’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which in respect of obligations that are not overdue for a period of more than 30 60 days or which that are bonded or that are being contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's connection with workers’ compensation, unemployment insurance and other social security legislationand other similar legislation or other insurance-related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(ed) pledges pledges, deposits or deposits Liens to secure the performance of bids, trade tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations to secure obligations, completion guarantees, surety, judgment, appeal or performance bonds and contractual bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easementseasements (including reciprocal easement agreements), rights-of-way, restrictions building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances incurred or title defects incurred, or leases or subleases granted to others, in the ordinary course of business and encumbrances consisting of zoning restrictionsbusiness, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not in the aggregate materially interfere in any material respects with the ordinary conduct of the business of Infinity the Parent Borrower and its Subsidiaries Restricted Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Closing Date, which Liens or arrangements are set forth on Schedule 7.2, or (in the case of any such Liens securing Indebtedness of the Parent Borrower or any of its Subsidiaries existing or arising under written arrangements existing on the Closing Date) securing any Refinancing Indebtedness in respect of such Indebtedness so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Parent Borrower or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(h) Liens on Property securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with subsection 7.1;
(i) Liens arising out of judgments, decrees, orders or awards in respect of which the Parent Borrower or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (i) Indebtedness Incurred in compliance with subsections 7.1(b)(i), (iii) (other than under the Senior Interim Loan Facility, the Existing Notes, and Refinancing Indebtedness Incurred in respect of Indebtedness under the Senior Interim Loan Facility, the Existing Notes, or Indebtedness Incurred in compliance with subsection 7.1(a)), (iv), (v), (vii), (viii), (ix) or (xi), (ii) Bank Indebtedness Incurred in compliance with subsection 7.1(b)(xii), (xiv) or (xv), (iii) Indebtedness of any Restricted Subsidiary of Infinity that is not a Subsidiary Guarantor, (iv) Indebtedness or other obligations of any Special Purpose Entity, or (v) obligations in respect of Management Advances or Management Guarantees, in each case including Liens securing any Guarantee of any thereof;
(l) Liens existing on property or assets of a 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 the Parent Borrower (or at the time the Parent Borrower or a Restricted Subsidiary acquires such Person merged property or assets, including any acquisition by means of a merger or consolidation with or into Infinity the Parent Borrower or any Subsidiary thereofRestricted Subsidiary); provided, as the case may behowever, were that such Liens are not created in anticipation thereof connection with, or in contemplation of, such other than Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to finance all or part of the purchase thereof same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(n) any encumbrance or restriction (including, but not limited to, put and are not spread call agreements) with respect to cover Capital Stock of any Property joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other than obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the Property covered same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;
(p) Liens (i) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, (ii) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, (iii) on receivables (including related rights), (iv) on cash set aside at the time of the relevant transaction;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision Incurrence of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of government securities purchased with such receivables and inventory cash, 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 any Material Subsidiary (except either case to the extent that such cash or government securities pre-fund the payment of breaches of representations interest on such Indebtedness and warranties of Infinity or 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 secure Indebtedness of Infinity are held in an aggregate amount not greater than $125,000,000;
escrow account or similar arrangement to be applied for such purpose, (lv) Sale/Leasebacks consummated prior to the Closing Date;
(m) securing or arising by reason of 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 netting 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, set-off arrangement entered into in the ordinary course of business banking or other trading activities (including in connection with purchase orders and other agreements with customers), (vi) in favor of the Parent Borrower or any Subsidiary (other than Liens on property or assets of the Parent Borrower or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (vii) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (viii) on inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such Indebtednessinventory or other goods, "Specified Section 5.5(n(ix) Indebtedness")relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (x) and attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, (iixi) arising in connection with repurchase agreements permitted under subsection 7.1, on assets that are the aggregate Sale/Leaseback Attributable Debt subject of such repurchase agreements, or (xii) in favor of any Special Purpose Entity in connection with respect to such Sale/Leasebacks shall any Financing Disposition;
(q) other Liens securing obligations incurred in the ordinary course of business, which obligations do not exceed $125,000,000 40.0 million at any one time outstanding; and
(or) Liens securing Indebtedness (including Liens securing any extensionObligations in respect thereof) consisting of Indebtedness Incurred in compliance with subsection 7.1, renewal or replacement provided that on the date of the foregoing; provided, however, that, except Incurrence of such Indebtedness after giving effect to such Incurrence (or on the date of the initial borrowing of such Indebtedness after giving pro forma effect to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)Incurrence of the entire committed amount of such Indebtedness), the Liens permitted under this paragraph Consolidated Secured Leverage Ratio shall not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)exceed 5.00:1.00.
Appears in 1 contract
Limitation on Liens. Infinity No Related person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume ------------------- or suffer or permit to exist any Lien upon any of its Property, the properties or enter into any Sale/Leaseback with respect to any such Property, whether assets which it now owned owns or hereafter acquired; providedacquires, that the foregoing restrictions shall not apply toexcept:
(ai) Liens imposed which secure Obligations and the obligations of the Borrower pursuant to the Subject Hedging Agreements only;
(ii) Liens which secure Indebtedness permitted by any Governmental Authority Section 6.2(a)(iii);
(iii) Liens for taxes, taxes or assessments on real or charges personal property which are not yet due past due, or Liens for taxes and payable assessments on real or personal property which are being contested in good faith and by appropriate proceedings if past due but for which adequate reserves with respect thereto are maintainedmaintained on its books in accordance with GAAP and which are being diligently contested in good faith by appropriate proceedings and have not proceeded to judgment;
(biv) carriers'imperfections and irregularities in title to any property (which indirectly or together with any other such property has an aggregate fair market value in excess of $500,000) which in the aggregate do not materially impair the fair market value or use of such property for the purposes for which it is or may reasonably be expected to be held;
(v) easements, warehousemenexceptions, reservations, servitudes, permits, surface leases and other rights in respect of surface leases, zoning, planning, environmental and similar restrictions, laws or ordinances or agreements for the purpose of pipelines, conduits, cables, wire communication lines, power lines and substations, streets, roads, trails, walkways, drainage, irrigation, water, and sewage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other minerals, or for the joint or common use of real property or rights-of-way and other like purposes affecting real property (which indirectly or together with any other such property has an aggregate fair market value in excess of $500,000) which in the aggregate, are not substantial in amount, and which do not, in any case, materially burden or impair the fair market value or use of such property for the purposes for which it is or may reasonably be expected to be held;
(vi) non-consensual Liens imposed by law (other than a Lien imposed by ERISA), including carrier's, mechanics', materialmen's, repairmenlandlord's, architects' warehousemen's or other like similar Liens, with respect to obligations not incurred in connection with any violations of law and which are not delinquent or, if delinquent, are being diligently contested in good faith by appropriate proceedings, and for which adequate reserves with respect thereto are maintained on its books in accordance with GAAP;
(vii) Liens arising consisting of pledges or deposits made in connection with obligations under unemployment insurance, social security, workers' compensation laws or similar legislation;
(viii) Liens consisting of pledges or deposits of property to secure insurance 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extentbusiness, for an amount and for a period not resulting in an 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 tenders, contracts (other than contracts for borrowed the payment of money), leases, statutory obligations to secure suretylicenses, appeal or franchises, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fix) easements, rights-of-way, restrictions and other similar encumbrances incurred Liens consisting of deposits of property to secure statutory obligations of Borrower in the ordinary course of business and encumbrances its business;
(x) Liens consisting of zoning restrictions, easements, licenses, restrictions on pledges or deposits of cash or cash equivalents to secure Hedging Agreements (other than the use Subject Hedging Agreements) with counterparties that are not Lenders are affiliates of Property or minor imperfections in title thereto and Lenders; provided that no more than $5,000,000 is subject to such Liens under leases and subleases which, at any one time in the aggregate, ; provided further that the conditions of Section 6.2(n)(iii) are not material in amount, and which do not interfere in any material respects with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholesatisfied;
(gxi) Liens on Property consisting of any Subsidiary deposits of Infinity property to secure (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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure surety, appeal or otherwisecustomer bonds) by Infinity or any of its Subsidiaries, each of in proceedings to 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, all or Borrower is 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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, party in the ordinary course of business its business;
(any such Indebtednessxii) Liens arising under operating, "Specified Section 5.5(n) Indebtedness")) farmout, pooling or unitization agreements of Borrower of the scope and (ii) nature customary in the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingoil and gas industry; and
(oxiii) Liens for lessor's royalties, overriding royalties, and division orders and sales contracts covering hydrocarbons, reversionary interests and similar burdens; and any extension, renewal operator's Liens or replacement similar Liens arising in the ordinary course of the foregoingoil and gas operations of the Related Persons and securing obligations that are not past due; providedprovided that no Lien referred to above in subsections (ii) through (iii), howeverinclusive, that, shall (1) secure Indebtedness (except to the extent otherwise permitted by this Section 5.5 in subsection (including Section 5.5(nii)), (2) in the Liens permitted under this paragraph shall not aggregate materially detract from the value of the oil and gas properties of the Related Persons or materially impair the use thereof in the operation of the business of the Related Persons, (3) individually or in the aggregate, operate to reduce the net revenue interest of the Related Persons in any of the Mortgaged Property owned by the Related Persons to less than the net revenue interest set forth in the Engineering Report most recently delivered by Borrower to the Administrative Agent, or (4) be spread disadvantageous in any material respect to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Administrative Agent and the Lenders.
Appears in 1 contract
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, the properties or enter into any Sale/Leaseback with respect to any such Property, whether assets which it now owned owns or hereafter acquired; providedacquires, that except the foregoing restrictions shall not apply to:following ("Permitted Liens"):
(a) Liens created pursuant to this Agreement or the Security Documents and Liens existing on the date of this Agreement and listed in the Disclosure Schedule or Liens created pursuant to the Marketing Credit Agreement or the "Security Documents" as defined in the Marketing Credit Agreement, subject to the terms of the Intercreditor Agreement referred to in Section 4.1(m).
(b) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are is being contested in good faith and by appropriate proceedings proceedings, if necessary, for which adequate reserves are maintained on the books of any Restricted Person in accordance with respect thereto are maintainedGAAP;
(bc) pledges or deposits of cash or securities under worker's compensation, unemployment insurance or other social security legislation;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 overdue for a period of more than 30 60 days past due or the validity of which are is being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal , if necessary, and for which adequate reserves are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting Restricted Person in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationaccordance with GAAP;
(e) pledges Liens under or with respect to accounts with brokers or counterparties with respect to Hedging Contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing only Hedging Contracts permitted under Section 7.1;
(f) deposits of cash or securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fg) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity 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 transactionRestricted Person;
(h) Liens in respect of operating leases and Capital Leases permitted under Section 7.1;
(i) Liens upon real and/or personal any property or assets acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed) and improvements thereon;
the Indebtedness secured thereby is permitted under Section 7.1(h) hereof; and any extension, renewal, refinancing, refunding or replacement (i) mortgages on Property securing indebtedness or successive extensions, renewals, refinancings, refundings or replacements), in favor whole or part, of the United States of America foregoing, provided, however, that such Liens shall not cover or secure any state thereof additional Indebtedness, obligations, property or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteasset;
(j) Liens securing Indebtedness owed rights reserved to Infinity or vested in any governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to any Wholly Owned Subsidiary of Infinitycondemn or acquire by eminent domain or similar process;
(k) Liens (i) upon the receivables and inventory of Infinity rights reserved to or vested by Law in any governmental authority to in any manner, control or regulate in any manner any of its Subsidiaries to secure Indebtedness resulting from financings the properties of such receivables any Restricted Person or the use thereof or the rights and inventory interests of any Restricted Person therein, 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 manner under any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000all Laws;
(l) Sale/Leasebacks consummated prior rights reserved to the Closing Dategrantors 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;
(m) any Sale/Leaseback inchoate Liens in respect of assets pending litigation or with respect to a judgment which has not resulted in an Event of Infinity owned on the Closing Date and listed on Schedule 5.5(m);Default under Section 8.1; and
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that on property of US Borrower permitted pursuant to the sum of (i) the aggregate principal amount terms 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 such Property or other Property of equivalent value)Marketing Credit Agreement.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Restricted Subsidiaries to, create, create or incur, assume or suffer to exist be incurred or to exist, any Lien upon any of on its Property, or enter into any Sale/Leaseback with respect to any such Propertytheir property or assets, whether now owned or hereafter acquired; provided, that or upon any income or profits therefrom, or transfer any property for the foregoing restrictions shall not apply topurpose 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 its Restricted Subsidiaries to acquire, any property or assets upon conditional sales agreements or other title retention devices, except:
(a) Liens imposed by any Governmental Authority for taxes, 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 yet due and payable at the time required by Section 9.4; (b) Liens of or resulting from any litigation or legal proceeding which are currently being contested in good faith and by appropriate proceedings if adequate and for which the Company or the relevant Restricted Subsidiary shall have set aside on its books reserves in accordance with respect thereto are maintained;
(b) carriers'GAAP; provided that the Company or such Restricted Subsidiary need not so contest any such litigation or legal proceeding as long as, warehousemen'sand only as long as, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in all judgments against the ordinary course of business Company and its Restricted Subsidiaries which are not overdue for a period of more than 30 days stayed, bonded or which are being contested discharged do not, at any one time, exceed $1,000,000 in good faith and by appropriate proceedings;
the aggregate; (c) Liens securing judgments or to perfect an appeal of any order or decree but only incidental to the extent, for an amount conduct of business or the ownership of properties and for a period not resulting assets (including Liens in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under connection with worker's compensation, unemployment insurance and other social security legislation;
(elike laws, warehousemen's and attorneys' liens and statutory landlords' liens) pledges or deposits and Liens to secure the performance of bids, tenders or trade contracts (other than for borrowed money)contracts, leases, statutory obligations or to secure suretystatutory obligations, indemnity, surety or appeal bonds or performance bonds and contractual other Liens of like general nature, in any such case not incurred in connection with the borrowing of money, which in any such case would not have a Material Adverse Effect, provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other obligations similar purposes, or zoning or other restrictions as to the use of real properties, which do not in any event materially impair their use in the operation of the business of the Company and its Restricted Subsidiaries;
(i) Liens securing Indebtedness of a like nature incurred Restricted Subsidiary to the Company and (ii) Liens constituting a lease on property owned by the Company and its Subsidiaries entered into in the ordinary course of business and pursuant to which the Company or its Subsidiaries is the lessor so long as such lease is not involving entered into in connection with the borrowing of moneymoney by the Company or its Subsidiaries;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 existing as of the business date of Infinity the Closing and its Subsidiaries taken as a wholedescribed 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 or financing incurred in connection with the acquisition, purchase or improvement of fixed assets, useful and intended to be used in carrying on Property the business of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity the Company or any Subsidiary thereof; providedof its Restricted Subsidiaries, provided that (i) the Lien shall attach solely to the fixed assets acquired, purchased or improved, (ii) such Liens are Lien shall have been created or were in existence incurred within 90 days after the date of acquisition, purchase or improvement, (iii) at the time of the imposition of the Lien, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such Person becomes fixed assets (whether or became a Subsidiary of Infinity or such Person merged with or into Infinity not assumed by the Company or any Subsidiary thereofof its Restricted Subsidiaries) shall not exceed an amount equal to the total acquisition or purchase price or the price of such improvements, and (iv) all such Indebtedness shall have been incurred within the limitations provided in Section 10.5(a)(iv) or (a)(v), 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu created or incurred after the Closing given to secure Indebtedness of foreclosure or otherwise) by Infinity the Company or any of its Restricted 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except addition to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financingsLiens permitted by the preceding clauses (a) and through (iig) upon the Property of Infinity to secure hereof, provided that all Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 shall have been incurred within the limitations provided in Section 10.5 (other than Indebtedness as defined in clause a)(iv) or (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)a)(v), as 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 such Property or other Property of equivalent value)case may be.
Appears in 1 contract
Limitation on Liens. Infinity will The Borrower shall not, and will not nor shall it permit any of its Material Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such their Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date of this Agreement and listed on Schedule II hereto;
(c) Liens imposed by any Governmental Authority for taxes, assessments assessments, charges or charges levies not yet due and payable or which are being contested in good faith and by appropriate proceedings if if, unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower or the affected Subsidiaries, as the case may be, in accordance with GAAP;
(bd) Liens, privileges or charges imposed by law, such as statutory liens and deemed trusts, workers’ compensation, unemployment insurance, pension and employment law carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 45 days or which are being contested in good faith and by appropriate proceedings;
(c) proceedings and Liens securing judgments or to perfect an appeal of any order or decree (but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (hSection 10(h) of Article VIhereof);
(de) pledges or deposits under worker's ’s compensation, unemployment insurance and other social security or similar legislation;
(ef) pledges or (i) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure obligations, surety, stay, appeal or and indemnity bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business business, and (ii) Liens to secure Indebtedness permitted pursuant to Section 9.07(e) in an amount not involving to exceed $2,000,000; provided that, for the borrowing avoidance of moneydoubt, nothing in this clause (f) shall be construed to permit the making of any deposit to secure an Obligor’s obligations under any Hedging Agreement (other than a Designated Hedging Agreement);
(fg) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property Property, or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of Infinity 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity Borrower or any of its Restricted 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value).
Appears in 1 contract
Limitation on Liens. Infinity will The Company shall not, and will shall not cause or permit any Subsidiary of its Material Subsidiaries to, the Company to create, incur, assume or suffer permit to exist exist, directly or indirectly, any Lien upon on any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether property now owned or hereafter acquired; providedacquired by it or on any income or revenues or rights in respect of any thereof, that except the foregoing restrictions shall not apply to:following (collectively, the “Permitted Liens”):
(a) inchoate Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for taxes, assessments or governmental charges or levies, which (i) are being contested in good faith and by appropriate proceedings if which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien (and for which adequate reserves have been established in accordance with respect thereto are maintainedGAAP), or (ii) in the case of any such charge or claim which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;
(b) carriers'Liens in respect of property of the Company or any of its Subsidiaries imposed by Requirements of Law, warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an 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 were incurred in the ordinary course of business and do not involving secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the borrowing ordinary course of moneybusiness, and (i) which do not in the aggregate materially detract from the value of the property of the Company and its Subsidiaries, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Company and its Subsidiaries, taken as a whole, (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien, and (iii) in the case of any such Lien which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;
(fc) any Lien in existence on the Closing Time and set forth on Schedule 8.07(c) and any Lien granted as a replacement or substitute therefor; provided that any such replacement or substitute Lien (i) does not secure an aggregate amount of Indebtedness, if any, greater than that secured on the Closing Time and (ii) does not encumber any property other than the property subject thereto on the Closing Time (any such Lien, an “Existing Lien”);
(d) easements, rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions and other similar encumbrances incurred charges or encumbrances, and minor title deficiencies on or with respect to any Real Property, in each case whether now or hereafter in existence, not (i) securing Indebtedness, (ii) individually or in the ordinary course aggregate materially impairing the value or marketability of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of such Real Property or minor imperfections in title thereto and Liens under leases and subleases which, (iii) individually or in the aggregate, are not material in amount, and which do not interfere in any material respects aggregate materially interfering with the ordinary conduct of the business of Infinity the Company and its Subsidiaries taken as at such Real Property;
(e) Liens arising out of judgments, attachments or awards not resulting in a wholeDefault and in respect of which the Company or such Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings and, in the case of any such Lien which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;
(f) Liens (other than any Lien imposed by ERISA) (x) imposed by Requirements of Law or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation, (y) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or (z) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z) of this paragraph (f), such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings for orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the property subject to any such Lien, (ii) to the extent such Liens are not imposed by Requirements of Law, such Liens shall in no event encumber any property other than cash and Cash Equivalents, (iii) in the case of any such Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions and (iv) the aggregate amount of deposits at any time pursuant to clause (y) and clause (z) of this paragraph (f) shall not exceed $300,000 in the aggregate;
(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 Leases of the relevant transaction;
(h) Liens 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 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, all or a part properties 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 Company or any of its Subsidiaries, in each case entered into in the ordinary course of the Company’s or such Subsidiary’s business and do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of the Company or any of its Subsidiaries, or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(h) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(i) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Company or any of its Subsidiaries, in each case granted in the ordinary course of business (any in favor of the bank or banks with which such Indebtednessaccounts are maintained, "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Sale/Leasebacks Liens are nonconsensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(j) Liens on property of a person existing at the time such person is acquired or merged with or into or consolidated with the Company or any of its Subsidiaries to the extent permitted hereunder (and not created in anticipation or contemplation thereof); provided that such Liens do not extend to property not subject to such Liens at the time of acquisition (other than improvements thereon) and are no more favorable to the lienholders than such existing Lien;
(k) Liens granted pursuant to the Security Documents to secure the Secured Obligations;
(l) licenses of Intellectual Property granted by the Company or any of its Subsidiaries in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Company or any of its Subsidiaries;
(m) the filing of UCC financing statements solely as a precautionary measure in connection with operating leases or consignment of goods;
(n) Liens on property of the SPV or agreed to by Agent pursuant to the Subordination Agreement granted to secure the obligations under the SPV Financing Agreement as contemplated therein; provided, there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement without the prior written consent of the Agent; provided, further, that any increase in the scope of the collateral to which the Liens attach will be deemed material;
(o) Liens securing Subordinated Indebtedness permitted by Section 8.04(a)(iii), so long as such Liens are junior to the Liens granted pursuant to the Security Documents;
(p) Liens securing Indebtedness not to exceed $125,000,000 at €570,000 and permitted by Section 8.04(a)(xii);
(q) Liens securing Indebtedness incurred in accordance with Section 8.04(a)(ix), so long as such Liens, to the extent covering any one time outstandingCollateral other than the specific property being financed or refinanced, are junior to the Liens granted pursuant to the Security Documents; and
(or) Liens granted pursuant to the Falcon Purchase Agreement and in connection with any extension, renewal or replacement of the foregoingpermitted refinancings thereof; provided, however, thatthat no consensual Liens shall be permitted to exist, except directly or indirectly, on any Securities Collateral, other than Liens granted pursuant to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n))Security Documents, the Falcon Purchase Agreement and Liens permitted under this paragraph shall not be spread granted pursuant to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)the SPV Financing Agreement at the Closing Time.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or claims that are not yet due and payable delinquent or which that are being contested in good faith and by appropriate proceedings if adequate reserves promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with respect thereto are maintainedGAAP has been made therefor;
(b) Liens imposed by law, such as carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which that are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments (other than any Lien imposed by ERISA or to perfect an appeal any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of any order or decree but only to the extentbusiness in connection with workers’ compensation, for an amount unemployment insurance, and for a period not resulting in an Event other types of Default under paragraph (h) of Article VIsocial security;
(d) pledges Liens to secure the performance of statutory obligations, surety or deposits under worker's compensationappeal bonds, unemployment insurance and other social security legislation;
(e) pledges or performance bonds, deposits to secure the performance of bids, trade contracts (other than for borrowed money)contracts, leasesgovernment contracts, statutory obligations to secure suretywarranty requirements, appeal leases or performance bonds and contractual and licenses or other obligations of a like nature or incurred in the ordinary course of business and not involving the borrowing of money(including, without limitation, landlord Liens on leased real property);
(fe) easementssurvey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, restrictions sewers, electric lines, telegraph and telephone lines and other similar encumbrances purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that 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 such Person;
(f) Liens in existence on the date hereof listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien is spread to cover any additional Property after the Closing Date and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(c) 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 amount of Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by the Borrower or any other Subsidiary in the ordinary course of its business and covering only the assets so leased;
(j) judgment liens which would not create any Event of Default;
(k) licenses of Intellectual Property in the ordinary course of business;
(l) liens on fixed assets existing at the time such fixed assets are acquired in connection with a Permitted Acquisition and not created in contemplation thereof;
(m) deposits in an aggregate amount not to exceed $1,000,000 made in the ordinary course of business to secure liability to insurance carriers;
(n) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and other similar Liens under leases and subleases which, arising in the aggregateordinary course of business;
(o) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, are shipment or storage of such inventory or other goods;
(p) leases or subleases granted to third Persons not material in amount, and which do not interfere in any material respects interfering with the ordinary conduct course of business of the business of Infinity 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity 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 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;
(iq) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any departmentdeposits, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 to exceed $400,000,000 less 250,000 at any one time outstanding, made in the aggregate amount ordinary course of Indebtedness business to secure liability to the Borrower’s insurance carriers;
(r) Liens on assets of a Subsidiary of the Borrower that is secured pursuant to clause (ii) belownot a Guarantor securing Indebtedness of that Subsidiary; provided, provided that the terms of such Indebtedness do not provide was permitted to be incurred by Section 6.2;
(s) Liens arising out of conditional sale, title retention, consignment or similar arrangements for any recourse to Infinity or any Material Subsidiary (except to the extent sale of breaches of representations and warranties of Infinity goods entered into by the Borrower or any of its Subsidiaries in connection the ordinary course of business;
(t) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(h) to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such financings and other recourse customary in connection with "off-balance sheet" financings) and Capital Stock, (ii) upon such Liens do not at any time encumber any Property other than the Property Capital Stock of Infinity to secure such acquired Person and (iii) the amount of Indebtedness of Infinity in an aggregate amount secured thereby does not greater than exceed $125,000,000;30,000,000; and
(lu) 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 propertynot otherwise permitted by this Section 6.3, and additional Sale/Leasebacks; provided, that the sum of so long as neither (i) the aggregate outstanding 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 thereby nor (ii) the aggregate Sale/Leaseback Attributable Debt with respect to Fair Market Value (determined as of the date such Sale/Leasebacks shall not exceed Lien is incurred) of the assets subject thereto exceeds $125,000,000 10,000,000 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 such Property or other Property of equivalent value)time.
Appears in 1 contract
Sources: Revolving Credit Agreement (B&g Foods Holdings Corp)
Limitation on Liens. Infinity will not, and The Borrower will not permit any of its Material Subsidiaries toincur, create, assume, or permit to exist, or permit any Subsidiary to incur, assume create, assume, or suffer permit to exist exist, any Lien upon any of its Propertyproperty, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed in favor of the Administrative Agent pursuant to the Loan Documents;
(b) Liens disclosed on Schedule 10.2 hereto, provided that any such Liens indicated on Schedule 10.2 as a "Lien to be Released" shall have been released or provision satisfactory to the Agents for the release of such Liens shall have been made on or before the date of the initial Advance hereunder;
(c) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of the Borrower or the Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by any Governmental Authority existing or proposed structures or land use;
(d) Liens for taxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if for which adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationhave been established;
(e) pledges or deposits to secure Liens of landlords (for any location where a landlord's waiver is not required under the performance of bids, trade contracts (other than for borrowed moneyLoan Documents), leasesmechanics, materialmen, warehousemen, carriers, or other similar statutory Liens securing obligations to secure surety, appeal or performance bonds that (i) are not yet due and contractual and other obligations of a like nature are incurred in the ordinary course of business or (ii) are being contested in good faith by appropriate proceedings diligently pursued, and not involving the borrowing of moneyfor which adequate reserves have been established;
(f) easementsLiens resulting from good faith deposits to secure payments of workmen's compensation, rights-of-wayunemployment insurance or other social security programs or to secure the performance of tenders, restrictions statutory obligations, surety and appeal bonds, bids, or contracts (other similar encumbrances incurred than for payment of Debt), or leases made in the ordinary course of business business, or arising from litigation which are effectively stayed from execution and encumbrances consisting would not otherwise constitute a Default or cause an Event of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity and its Subsidiaries taken as a wholeDefault;
(g) Liens on Property of specified assets securing 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 transactionNon-Recourse Debt permitted by Section 10.1(e);
(h) Liens upon real and/or personal property acquired (on any assets which are the subject of a Sale-Leaseback Transaction, securing the Sale-Leaseback Debt resulting therefrom, provided such Sale-Leaseback Debt is permitted 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 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, all or a part of the cost (including the cost of construction) of such Property or improvements thereonSection 10.1(e); 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;and
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) purchase money Senior Debt permitted by Section 10.1(d), provided that such Liens (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 encumber any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 (property other than Indebtedness as defined in clause (f) of the definition thereof property for 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 such Property or other Property of equivalent value)purchase money was incurred.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, create, incur, assume Create or suffer to exist any Lien upon any of its Property, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply to:
except: (ai) Liens at any time granted in favor of Lender; (ii) Liens for taxes (excluding any Lien imposed by pursuant to any Governmental Authority for taxes, assessments or charges of the provisions of ERISA) not yet due or being contested as permitted by Section 8.1(A) hereof, but only if in Lender's judgment such Lien does not affect adversely Lender's rights or the priority of Lender's Lien in the Collateral; (iii) Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and payable other like Persons for labor, materials, supplies or which rentals incurred in the ordinary course of Borrower's business, but only if the payment thereof is not at the time required (or if payment is required, only if and for so long as the execution or other enforcement of such Liens is and continues to be effectively stayed and bonded in a manner satisfactory to Lender for the full amount thereof, the validity and amount of the claims secured thereby are being actively contested in good faith and by appropriate lawful proceedings and such Liens do not, in the aggregate, materially detract from the value of the Property of Borrower or materially impair the use thereof in the operation of Borrower's business) and only if adequate reserves with respect thereto such Liens are maintained;
junior to the Liens in favor of Lender; (biv) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' liens incurred or other like Liens arising deposits made in the ordinary course of business which are not overdue in connection with workmen's compensation, unemployment insurance, social security and other like laws; (v) attachment, judgment and other similar non-tax Liens arising in connection with court proceedings, but only if and for so long as the execution or other enforcement of such Liens is and continues to be effectively stayed and bonded on appeal in a period manner satisfactory to Lender for the full amount thereof, the validity and amount of more than 30 days or which the claims secured thereby are being actively contested in good faith and by appropriate proceedings;
(c) lawful proceedings and such Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an 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) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases whichdo not, in the aggregate, are materially detract from the value of the Property of Borrower or materially impair the use thereof in the operation of Borrower's business; (vi) Purchase Money Liens not material in amountotherwise inconsistent with the terms of this Agreement; (vii) reservations, exceptions, easements, rights of way, and which other similar encumbrances affecting real Property, provided that, in Lender's sole judgment, they do not in the aggregate materially detract from the value of said Properties or materially interfere with their use in any material respects with the ordinary conduct of the Borrower's business of Infinity and its Subsidiaries taken as a whole;
(g) Liens on and, if said real Property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity or any Subsidiary thereofconstitutes Collateral, Lender has consented thereto; 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (iiviii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on the Closing Date and listed such other Liens as may be expressly disclosed on Schedule 5.5(m);
(n8.2(E) 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 such Property or other Property of equivalent value)attached hereto.
Appears in 1 contract
Limitation on Liens. Infinity will The Borrower shall not, and will shall not permit any of its Material Included Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, PROVIDED that adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 60 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers' compensation, unemployment insurance and other social security legislationlegislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, amount and which do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity the Borrower or such Subsidiary;
(f) Liens in existence on the Closing Date listed on Schedule VIII or described in the financial statements referred to in subsection 3.1 or in any notes thereto, securing Indebtedness permitted by subsection 6.2(b), provided that no such Lien is spread to cover any additional property after the Closing Date and its Subsidiaries taken as a wholethat the amount of Indebtedness secured thereby is not increased;
(g) Liens on Property securing Indebtedness 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 Borrower and its Subsidiaries permitted by subsection 6.2(a) incurred to finance the purchase thereof and are 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 spread to cover at any Property time encumber any property other than the Property covered property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the time purchase price of the relevant transactionsuch property;
(h) Liens upon real and/or personal on the property acquired or assets of a corporation which becomes a Subsidiary after the date hereof securing Indebtedness permitted by subsection 6.2(c), provided that (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwisei) by Infinity or any of its Subsidiaries, each of which such Liens either (A) existed on such Property before at the time of its acquisition such corporation became a Subsidiary and was were not created in anticipation thereof thereof, (ii) any such Lien is not spread to cover any property 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) assets of such Property or improvements thereon; providedcorporation after the time such corporation becomes a Subsidiary, that no such Lien shall extend to or cover any Property and (iii) the amount of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereonIndebtedness secured thereby is not increased;
(i) mortgages on Property securing indebtedness Liens (not otherwise permitted hereunder) which secure obligations in favor an aggregate amount at any one time outstanding not exceeding as to the Borrower and its Included Subsidiaries an amount equal to 5% of the United States of America or any state thereof or any departmentConsolidated Net Worth, agency or instrumentality or political subdivision measured at the time of the United States creation, incurrence or assumption of America or any state thereof, incurred for such Lien and based upon the purpose of financing all or any part Consolidated Net Worth as at the end of the purchase price or the cost of construction most recently completed fiscal quarter of the Property subject Borrower for which financial statements have been furnished to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments the Administrative Agent pursuant to any contract or provision of any statutesubsection 5.1;
(j) Liens securing Indebtedness owed on "margin stock" within the meaning of Regulation U to Infinity or the extent that margin stock would, but for this paragraph (j), represent more than 25% of the value of the assets subject to any Wholly Owned Subsidiary of Infinitythis subsection 6.3;
(k) Liens (i) upon the receivables and inventory of Infinity on cash or any of its Subsidiaries cash equivalents to secure Indebtedness resulting from financings obligations of such receivables the Borrower 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings respect of any interest rate and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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, currency hedging agreements entered into in the ordinary course of business (any such Indebtednessand not for speculative purposes, "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt Liens with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandinghedging accounts maintained with dealers of NYMEX or similar contracts which require the maintenance of cash margin account balances; and
(ol) Liens provided for or required to be granted by the Borrower or FTC under any extensionLease Financing Arrangement, renewal which Liens shall not limit or replacement apply against the right of the foregoing; providedBorrower and its Included Subsidiaries to create, howeverincur, that, except assume or permit to exist Liens that comply with the extent otherwise permitted by provisions of paragraphs (a) through (k) of 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 such Property or other Property of equivalent value)subsection 6.3.
Appears in 1 contract
Sources: Five Year Facility Credit Agreement (Franklin Resources Inc)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, fees, assessments or and other governmental charges not yet due and delinquent or which remain payable without penalty or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower or its Restricted Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, landlords' (whether statutory or otherwise), mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which remain payable without penalty or that 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers' compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions restrictions, minor defects and irregularities in title and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases whichthat, in the aggregate, are not material substantial in amount, amount and which do not interfere in any material respects case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of Infinity the Borrower or any of its Restricted Subsidiaries in a way that deprives the Borrower or its Restricted Subsidiaries of the substantial value of the use of any Property that is material to the business of the Borrower and its Subsidiaries taken as a wholeRestricted Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f), securing Indebtedness permitted by Section 7.2(d), and any replacements of such Liens in connection with any refinancing of such Indebtedness permitted by such Section, provided that no such Lien is spread to cover any additional Property after the Closing Date (other than additions, accessions and improvements thereto and proceeds thereof) and that the amount of Indebtedness (plus any fees, premium, if any, and financing costs) secured thereby is not increased;
(g) Liens on securing Indebtedness incurred pursuant to Section 7.2(c) to finance the acquisition, construction or repair of fixed or capital assets or to refinance any such Indebtedness, provided that (i) such Liens shall be created substantially contemporaneously 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 (other than any improvements, proceeds, additions or accessions with respect thereto) and (iii) the amount of Indebtedness secured thereby is not increased (other than to the extent of accrued interest, fees, premium, if any and financing costs);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by the Borrower or any other Subsidiary in the ordinary course of its business and covering only the assets so leased;
(j) Liens arising solely by virtue of any Subsidiary statutory or common law provision relating to banker's liens, rights of Infinity set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Borrower in excess of those set forth by regulations promulgated by the Federal Reserve Board, and (ii) such deposit account is not intended by the Borrower or any of its Subsidiaries to provide collateral to the depository institution;
(k) Liens on fee-owned property of the Borrower and Class I Restricted Subsidiaries not subject to a Mortgage securing Non-Recourse Debt or Sale and Leaseback Transactions permitted by Section 7.11;
(l) Liens on assets of any Class II Restricted Subsidiary securing Non-Recourse Debt of such Class II Restricted Subsidiary permitted by Section 7.2;
(m) Liens securing Indebtedness permitted by Section 7.2(l) on property of a Person which is or was merged with or into Infinity or any Subsidiary thereof; provided, that such Liens are or were in existence on an asset existing at the time such Person becomes or became a Subsidiary of Infinity or such Person is merged with or into Infinity or consolidated with or is acquired by the Borrower or any Class I Restricted Subsidiary of the Borrower or such asset is so acquired; provided that such Liens were not incurred in connection with or in contemplation of such transaction and do not extend to any assets other than those of the Person merged into or consolidated with or acquired by, or the asset so acquired by, the Borrower or such Class I Restricted Subsidiary, as applicable, and accessions, additions and improvements thereto and proceeds thereof;
(n) Liens on assets of a Subsidiary of the Borrower in favor of the Borrower or any Guarantor;
(o) Liens in connection with the defeasance of any series of Senior Subordinated Notes covering the proceeds of Indebtedness which constitutes refinancing Indebtedness of such Notes permitted by Section 7.2(f) and other funds intended for such purpose, provided that, such Lien covers proceeds in an aggregate amount necessary solely to defease the principal, interest and premium, if any, due in connection with the defeasance of such Senior Subordinated Notes;
(p) Liens of the trustee (x) under Section 7.7 of the Senior Subordinated Note Indentures as in effect on the Closing Date (and similar provisions if the Senior Subordinated Note Indentures are amended in accordance with Section 7.9 or refinanced pursuant to Section 7.2(f)) or (y) any similar provision in any Senior Subordinated Note Indenture with respect to any Additional Senior Subordinated Notes issued after the Closing Date, in each case, on money or property held or collected by the trustee thereunder;
(q) Liens on assets of any joint venture or partnership pursuant to the organizational documents of such joint venture or partnership, provided that, such Liens cover only the assets of such joint venture or partnership, 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;
(hr) Liens upon real and/or personal property acquired (by purchasearising from judgments, construction, foreclosure, deed decrees or attachments in lieu circumstances not constituting an Event of foreclosure or otherwise) by Infinity 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 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 thereonDefault under Section 8(h);
(is) mortgages Liens in the nature of a right of first refusal, redemption rights or other restrictions on Property securing indebtedness in favor transfer existing as of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision Closing Date in respect of the United States shares or partnership interest of America Fandango, Inc., Laredo Theatre, Ltd. or any state thereofGreeley, incurred for Ltd. held by the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteBorrower;
(jt) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary the rights of Infinity;
(k) Liens (i) upon film distributors under film licensing contracts entered into by 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity Borrower or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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) on a basis customary in the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingmovie exhibition industry; and
(ou) any extension, renewal Liens on the stock of and assets of Class II Restricted Subsidiaries to secure the Peso Subfacility 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 such Property or other Property of equivalent value)Third-Party Peso Loans.
Appears in 1 contract
Limitation on Liens. Infinity will Borrower shall not, and will shall not permit any of its Material Subsidiaries to, incur, create, incurassume, assume or suffer permit to exist any Lien upon any of its Property, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) existing Liens imposed disclosed on Schedule 8.2;
(b) Liens in favor of Administrative Agent for the benefit of the Secured Parties, so long as, with respect to Liens for the benefit of Approved Commodity Swap Counterparties other than Bank Product Providers, such Liens are permitted by and subject to the Intercreditor Agreement;
(c) encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that are customary in the oil and gas industry and do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of Borrower or its Subsidiaries to use or operate such assets in their respective businesses, and none of which is violated in any Governmental Authority material respect by existing or proposed structures or land use or operation;
(d) Liens for taxesTaxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if for which adequate reserves in accordance with respect thereto are maintainedGAAP have been established;
(be) carriers'Liens of landlords, vendors, repairmen, suppliers, workers, builders, mechanics, materialmen, warehousemen's, mechanics'carriers, materialmen's, repairmen's, architects' or other like similar statutory Liens arising in the ordinary course of business which securing obligations that are not overdue for a period of more than 30 days yet due (or which are being contested in good faith and by appropriate proceedingsfor which adequate reserves are maintained in accordance with GAAP) and are incurred in the ordinary course of business;
(cf) Liens securing judgments resulting from good faith deposits to secure payments of workmen’s compensation or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
programs (eother than Liens imposed by ERISA) pledges or deposits to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, trade contracts (other than for borrowed moneypayment of Debt), or leases made in the ordinary course of business;
(g) purchase money Liens on specific Property to secure Debt used to acquire such Property and Liens securing Capitalized Lease Obligations with respect to specific leased Property, in each case to the extent permitted in Section 8.1(c);
(h) so long as no default has occurred by any Obligated Party in the payment or performance of such agreements, contracts, agreements, lease provisions, defects and irregularities which (i) were in effect when such Property, assets or revenues were acquired, (ii) were not created in contemplation of such acquisition, (iii) were not such as to materially interfere with the operation, value or use of the Properties covered by such Lien, (iv) are ordinary and customary to the oil, gas and other mineral exploration, development, processing or extraction business, (v) do not otherwise cause any other express representation or warranty of any Obligated Party in any of the Loan Documents to be untrue, and (vi) do not operate to reduce any Obligated Party’s net revenue interest in production for the affected Oil and Gas Properties (if any) below such interests reflected in the most recent Reserve Report, or increase the working interest for the affected Oil and Gas Properties (if any) as reflected or warranted in the most recent Reserve Report without a corresponding increase in the corresponding net revenue interest;
(i) contractual Liens for the benefit of operators of the Oil and Gas Properties of Borrower and its Subsidiaries, but only to the extent that such operators are not Obligated Parties or Affiliates of Obligated Parties and are not asserting a claim or right to exercise their rights under such contractual Liens, except for such claims and rights of operators which Borrower or the applicable Subsidiary is contesting in good faith and for which adequate reserves are maintained in accordance with GAAP;
(j) the statutory Lien to secure payment of proceeds of production established by Texas Bus. & Comm. Code § 9.343 and similar Laws of other jurisdictions;
(k) royalties, overriding royalties, reversionary interests, production payments and similar lease burdens which (i) are customarily granted in the ordinary course of business in the oil and gas industry, (ii) are deducted in the calculation of discounted present value in the most recent Reserve Reports delivered to Administrative Agent hereunder and (iii) with respect to each Oil and Gas Property, do not operate to reduce any Obligated Party’s net revenue interest in production for such Oil and Gas Property (if any) below such interests reflected in the most recent Reserve Report or increase the working interest for such Oil and Gas Property (if any) as reflected or warranted in the most recent Reserve Report without a corresponding increase in the corresponding net revenue interest, and (iv) do not operate to deprive any Obligated Party of any material rights in respect of its assets or properties;
(l) sale contracts, joint operating agreements, or other arrangements for the exploration, development, production, transportation, gathering, processing or sale of Hydrocarbons which (i) would not (when considered cumulatively with the matters discussed in Section 8.2(k) immediately preceding) deprive Borrower or any of its Subsidiaries of any material right in respect of Borrower’s or such Subsidiary’s assets or Properties, (ii) are ordinary and customary to the oil, gas and other mineral exploration, development, processing or extraction business, (iii) do not otherwise cause any other express representation or warranty of any Obligated Party in any of the Loan Documents to be untrue, and (iv) do not operate to reduce any Obligated Party’s net revenue interest in production for the affected Oil and Gas Properties (if any) below such interests reflected in the most recent Reserve Report, or increase the working interest for the affected Oil and Gas Properties (if any) as reflected or warranted in the most recent Reserve Report without a corresponding increase in the corresponding net revenue interest, except as reflected therein;
(m) Gas Balancing Agreements; provided that the amount of all gas imbalances and the amount of all production which has been paid for but not delivered shall have been disclosed or otherwise taken into account in the Reserve Reports delivered to Administrative Agent hereunder;
(n) Liens to secure plugging and abandonment obligations;
(o) Rights of set-off or similar rights and remedies and burdening only accounts or other funds maintained with a depository institution;
(p) Easements, restrictions, servitudes, permits, conditions, covenants, exceptions, or reservations for the purpose of surface operations, roads, pipelines, transmission lines, transportation lines, distribution lines, and other like purposes, or for the joint or common use of real estate, rights or way, facilities and equipment, that do no secure any monetary obligations and which in the aggregate do not materially impair the use of such Properties for the purposes of which such Properties are held by Borrower or any Subsidiary or materially impair the value of such Properties subject thereto;
(q) Liens on cash or securities pledged to secure performance of tenders, surety and appeal bonds, government contracts, performance and return of money bonds, bids, purchase agreement, trade contracts, leases, statutory obligations, regulatory 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 moneybusiness;
(fr) easements, rights-of-way, restrictions Judgment and other similar encumbrances incurred in attachment Liens not giving rise to an Event of Default; provided that any appropriate legal proceedings which may have been duly initiated for the ordinary course review of business such judgment shall not have been finally terminated or the period within which such proceeding may be initiated shall not have expired and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity and its Subsidiaries taken as a wholeno action to enforce such Lien has been commenced;
(gs) 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 outstandingImmaterial Title Deficiencies; and
(ot) any extension, renewal or replacement of the foregoingother Liens securing Debt permitted by Section 8.1(g); provided, however, that, except to the extent otherwise permitted by this Section 5.5 that Liens described in clauses (including Section 5.5(n)a), (d), (e), (f), (h) and (m) above shall continue to be permitted only for so long as the appropriate Obligated Party shall cause any proceeding instituted to enforce such Lien to stay the sale or forfeiture of any material portion of Property on account of such Lien; and provided further, that no intention to subordinate the first priority Liens granted in favor of Administrative Agent to secure the Obligations is hereby implied or expressed or is to be inferred by the permitted under this paragraph shall not be spread to cover any additional Indebtedness or Property (other than a substitution existence of like Property or improvements on such Property or other Property of equivalent value)Liens.
Appears in 1 contract
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under 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 any Subsidiary of Infinity or existing on any property of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, 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;
(hii) Liens 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 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, 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 not apply to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor property of the United States of America Borrower or any state thereof Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or any departmentthe date such Person becomes a Subsidiary, agency or instrumentality or political subdivision 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 United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured amount permitted by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing DateSection 7.02(m);
(m) Liens securing Indebtedness permitted by Section 7.01(f), (g) or (h); provided that such Liens do not secure Indebtedness which together with (but without duplication) all Indebtedness secured by Liens permitted under Section 7.02(l) in excess of a principal amount at any Sale/Leaseback one time of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m)$35,000,000;
(n) additional Liens upon real and/or personal propertyon cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(o) Liens in respect of operating leases covering only the property subject thereto; and
(p) Liens pursuant to the Loan Documents, and additional Sale/Leasebacks; providedand, that the sum of (i) on or after the aggregate principal amount New Revolving Credit Effective Date, Liens securing New Revolving Credit Indebtedness, provided that the Administrative Agent (on behalf of the obligations secured Lenders) and the holders of New Revolving Credit Indebtedness (directly or through an agent, trustee or other representative on their behalf) have agreed to be bound 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")) Intercreditor Agreement and (ii) on or after the aggregate Sale/Leaseback Attributable Debt with respect Senior Notes Effective Date, Liens securing Senior Note Indebtedness, provided that the Administrative Agent (on behalf of the Lenders) and the holders of New Revolving Credit Indebtedness and Senior Note Indebtedness (directly or through an agent, trustee or other representative on their behalf) have agreed to such Sale/Leasebacks shall not exceed $125,000,000 at be bound by the Intercreditor Agreement; Notwithstanding any one time outstanding; and
of the foregoing to the contrary, no Liens of the kind set forth in clauses (a) through and including (o) any extensionabove shall be permitted on the Equity Interests of ETP, renewal ETP GP, ETP LLC, Regency, Regency GP 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 such Property or other Property of equivalent value)Regency LLC.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries Subsidiary to, create, incur, assume Incur or suffer permit to exist any Lien upon on any of its Propertyproperties (including Capital Stock of a Restricted Subsidiary), whether owned on the date hereof or thereafter acquired, or enter into on any Sale/Leaseback with income or revenues or rights in respect to of any such Propertythereof, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toassign or transfer any income or revenues or rights in respect thereof except:
(a) pledges or deposits by such Person under worker's compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds 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;
(b) Liens imposed by any Governmental Authority law, such as carriers', warehousemen's and mechanics' Liens, in each case for taxes, assessments or charges sums not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves or other Liens arising out of judgments or awards against such Person with respect thereto are maintainedto which such Person shall then be proceeding with an appeal or other proceedings for review;
(bc) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in the ordinary course of business which are for property taxes not overdue yet subject to penalties for a period of more than 30 days non-payment or which are being contested in good faith and by appropriate proceedings;
(cd) Liens securing judgments in favor of issuers of surety bonds or to perfect an appeal letters of any order or decree but only credit issued pursuant to the extent, for an amount request of and for a period the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationconstitute Indebtedness;
(e) pledges minor survey exceptions, minor encumbrances, easements or deposits to secure the performance reservations of, or rights of bidsothers for, trade contracts (other than for borrowed money)licenses, leasesrights of way, statutory obligations to secure suretysewers, appeal or performance bonds electric lines, tele graph and contractual telephone lines and other obligations similar purposes, or zoning or other restrictions as to the use of a like nature incurred real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the ordinary course aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business and not involving the borrowing of moneysuch Person;
(f) easementsLiens securing Indebtedness Incurred to finance the construction, rights-purchase or lease of-way, restrictions or repairs, improvements or additions to, property, plant or equipment of such Person (and in any event excluding Capital Stock of another Person); provided, however, that the Lien may not extend to any other similar encumbrances incurred in asset owned by such Person or any of its Subsidiaries at the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on time the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amountLien is Incurred, and which do the Indebtedness secured by the Lien may not interfere in any material respects with be Incurred more than 180 days after the ordinary conduct later of the business acquisition, completion of Infinity and its Subsidiaries taken as a wholeconstruc tion, repair, improvement, addition or commencement of full operation of the property subject to the Lien;
(g) Liens on Property Performance Deposits and any Receivables or other assets referred to in clause (ii)(a) of any Subsidiary the definition of Infinity Permitted Warehouse Indebtedness, in each case owned by the Company 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 thereofRestricted Subsidiary, 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 transactionsecure Permitted Warehouse Indebtedness;
(h) Liens upon real and/or personal property acquired on Excess Spread Receivables (by purchase, construction, foreclosure, deed in lieu or on the Capital Stock of foreclosure or otherwise) by Infinity or any Subsidiary of its Subsidiaries, each such Person substan tially all the assets of which are Excess Spread Receivables); provided, however, that (i)(A) any such Liens either (A) existed shall not pertain to any Excess Spread Receivable existing on the date hereof, which, if created there after, would have been an Eligible Excess Spread Receivable unless such Excess Spread Receivable was subject to a Lien on such Property before date created by the Company in respect of the financing thereof (a "predecessor Lien"); provided further, however, that in the case of any such Liens (a "subsequent Lien") on Excess Spread Receivables which were subject to predecessor Liens, the sum of (x) the aggregate book value of subordinated interests created and retained by the Company or its Restricted Subsidiaries as a result of the sale or financing associated with such subsequent Liens and (y) the aggregate book value of any Excess Spread Receivables which were subject to predecessor Liens but which are then no longer subject to any Lien (other than permitted Liens described under another clause of this Section) shall equal at least the aggregate book value at such time of its acquisition all such Excess Spread Receiv ables which are then subject ▇▇ subsequent Liens, as calculated immediately prior to the creation of each such subsequent Lien, multiplied by a fraction the numerator of which is the aggregate book value of the subordinated interests associated with all predecessor Liens on the date hereof, and was not created in anticipation thereof or the denominator of which is the sum of (x) such aggregate book value of such subordinated interests and (y) the outstanding balance on the date hereof, of the related senior interests; and (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 any such Lien on any Eligible Excess Spread Receivables shall extend to or cover Eligible Excess Spread Receivables representing no more than 50% of the amount of Eligible Excess Spread Receivables shown on the balance sheet of the Company and its Restricted Subsidiaries on a consolidated basis, determined and consolidated in accordance with GAAP, as of the later of (x) the date hereof and (y) the end of the most recent fiscal quarter of the Company prior to the creation of such Lien for which financial statements are available; and (ii) for purposes of this clause (h), any Property Lien on the Capital Stock of Infinity or any Person substantially all the assets of which are Excess Spread Receivables shall be treated as a Lien on the Excess Spread Receivables of such Subsidiary other than the respective Property so acquired and improvements thereonPerson;
(i) mortgages Liens existing on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statutedate hereof and listed on Schedule 6.02;
(j) Liens securing Indebtedness owed to Infinity on property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided further, however, that such Lien may not extend to any Wholly Owned Subsidiary other property owned by such Person or any of Infinityits Subsidiaries;
(k) Liens (i) upon on property at the receivables and inventory of Infinity time such Person or any of its Subsidiaries to secure Indebtedness resulting from financings acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or a Subsidiary 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) belowPerson; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such acquisition; provided further, however, that the terms of Liens may not extend to any other property owned by such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity Person or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000Subsidiaries;
(l) Sale/Leasebacks consummated prior Liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to the Closing Datesuch Person or a Restricted Subsidiary of such Person;
(m) Liens (other than on any Sale/Leaseback of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m);Excess Spread Receivables) securing Hedging Agreements; and
(n) additional Liens upon real and/or personal propertyto secure any Refinancing (or successive Refinancings) as a whole, 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 any Indebted ness secured by any Lien referred to Infinity or any of its Subsidiaries, in the ordinary course foregoing clauses (f), (i), (j) and (k); provided, however, that (i) such new Lien shall be limited to all or part of business the same property that secured the original Indebted ness (any plus improvements to or on such Indebtednessproperty), "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt with respect Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under the foregoing clauses (f), (i), (j) or (k), as the case may be, at the time the original Lien became a Lien permitted by this Section, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstanding; and
(o) any refinancing, refunding, extension, renewal or replacement of replacement. Notwithstanding the foregoing; provided, howeverclauses (f), that(j) or (k), except above, will be deemed to exclude any Lien to the extent otherwise permitted by this such Lien applies to any Additional Assets acquired directly or indirectly with Net Available Cash pursuant to 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 such Property or other Property of equivalent value)6.04.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Contifinancial Corp)
Limitation on Liens. Infinity will The Borrower shall not, and will shall not permit any of its Material Subsidiaries other Restricted Person to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the Closing Date and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges (i) not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP or (ii) which could not, individually or in the aggregate be reasonably expected to have a Material Adverse Effect;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including 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 (i) which are not more than sixty (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 or (ii) with respect to which failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) Liens on deposits of cash or securities in favor of the seller of any property intended to be acquired in an Investment permitted pursuant to Section 7.06 to be applied against the purchase price for such Investment;
(g) Liens arising pursuant to customary provisions in joint venture agreements or arrangements, limited liability company agreements and other similar agreements relating solely to obligations of the Person granting such Liens to secure obligations under such joint venture, limited liability company or other similar agreement;
(h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any Subsidiary right, power, franchise, grant, license or permit, or by any provision of Infinity law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(j) rights reserved to or vested by Law in any Governmental Authority to control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein under any and all Laws;
(k) 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;
(l) inchoate Liens in respect of pending litigation or with respect to a judgment that has not resulted in an Event of Default under Section 8.01;
(m) statutory Liens in respect of payables;
(n) any Lien securing Indebtedness permitted by Section 7.01(g) or other obligations of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, as the case may be, were (ii) such Lien shall not created in anticipation thereof apply to any other than to finance the purchase thereof and are not spread to cover any Property other than the Property covered at the time property of the relevant transactionBorrower or any Subsidiary, 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;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(jo) Liens securing Indebtedness owed to Infinity permitted by Sections 7.01(f) or to any Wholly Owned Subsidiary of Infinity7.01(h);;
(kp) Liens on cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(q) Liens in respect of operating leases covering only the property subject thereto;
(r) Liens on Equity Interests of Unrestricted Persons (other than Liens on Equity Interests in ETP and Regency) and joint ventures securing Indebtedness or other obligations of such Unrestricted Person or joint venture;
(s) Liens securing (i) upon the receivables Obligations, the Lender Hedging Obligations 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 Other Hedging Obligations; (ii) belowthe Term Loan Obligations and/or any Term Loan Refinancing Indebtedness, in each case, permitted under Section 7.01; provided, that (iii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the terms of such the Indenture or the documentation governing the Senior Note Refinancing Indebtedness do not provide for any recourse to Infinity be equally and ratably secured with the Term Loan Obligations, the Senior Note Obligations or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) Senior Note Refinancing Indebtedness; and (iiiv) upon the Property of Infinity obligations for other Indebtedness incurred pursuant to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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(mSection 7.01(l);
(nt) additional Liens upon real and/or personal propertyLiens, and additional Sale/Leasebacks; provided, that the sum of (i) arising out of conditional sale, title retention, consignment or similar arrangements for the aggregate principal amount sale of the obligations secured goods entered into 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, Restricted Person in the ordinary course of business (any such Indebtednessbusiness, "Specified Section 5.5(n) Indebtedness")) and (ii) on assets being Disposed of by any Restricted Person pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the aggregate Sale/Leaseback Attributable Debt with Disposition of such assets, provided that such merger agreement, stock or asset purchase agreement or similar agreement in respect of the Disposition of such asset is permitted pursuant to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingthe terms of this Agreement; and
(ou) Liens incurred with respect to obligations that do not in the aggregate exceed $50,000,000 at any extension, renewal or replacement time outstanding. Notwithstanding any of the foregoing; provided, however, that, except foregoing to the extent otherwise contrary, other than as permitted by this Section 5.5 clause (s) above, no Liens of the kind set forth in clauses (a) through and including Section 5.5(n))(u) above shall be permitted on the Equity Interests of ETP, the Liens permitted under this paragraph shall not be spread to cover any additional Indebtedness ETP GP, ETP LLC, Regency, Regency GP or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Regency LLC.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or held or hereafter acquired; provided, that or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except the foregoing restrictions shall not apply tofollowing:
(a) Liens imposed by any Governmental Authority created pursuant to the Security Documents;
(b) Liens for taxes, assessments or other governmental charges or levies that are not yet due and payable or the payment of which are being contested in good faith and is not at the time required by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 proceedingsSection 9.4;
(c) Liens securing judgments (other than any Lien imposed by ERISA) incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, suppliers’ and other similar Liens, including Liens pursuant to customary reservations or retentions of title) and Liens to secure (or to perfect an appeal obtain letters of any order credit that secure) the performance of bids, tenders, leases or decree but only trade contracts or to the extentsecure statutory obligations (including pledges, for an amount deposits and for a period not resulting in an Event of Default other obligations under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workers compensation, unemployment and health insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leasessurety or appeal bonds, statutory obligations to secure suretyin each case, appeal or performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving in connection with the borrowing of money;
(fd) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar encumbrances charges or encumbrances, in each case incidental to the ownership of property or assets or the ordinary conduct of the business of the Company or any Subsidiary, and Liens incidental to minor survey exceptions, zoning restrictions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) any attachment or judgment Lien unless the judgments secured thereby (1) shall not, within 60 days after the entry thereof, have been satisfied, discharged or execution thereof stayed pending appeal, or shall not have been satisfied or discharged within 60 days after the expiration of any such stay or (2) exceed, individually or in the aggregate, $5,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage);
(f) Liens securing Indebtedness of a Subsidiary to the Company or to a Wholly-Owned Subsidiary;
(g) Liens existing on the date of the Closing and reflected in Schedule 10.4;
(h) Liens securing Indebtedness of the Company or a Subsidiary incurred to finance the acquisition or construction of fixed or capital assets; provided that:
(1) any such Lien shall extend solely to the item or items of such property (or improvement thereon) so acquired and, if required by the terms of the instrument originally creating such Lien, other property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed property (or improvement thereon) or which is real property being improved by such acquired or constructed property (or improvement thereon);
(2) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (i) the cost to the Company or a Subsidiary of the property (or improvement thereon) so acquired or constructed and (ii) the fair market value (as determined in good faith by one or more officers of the Company to whom authority to enter into the subject transaction has been delegated by the board of directors or other applicable governing body of the Company) of such property (or improvement thereon) at the time of such acquisition or construction;
(3) any such Lien shall be created contemporaneously with, or within 180 days after, the acquisition or construction of such property; 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 and the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the limitations set forth in Sections 10.1 and 10.3;
(i) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (1) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person 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 (i) other property which is an improvement to or is acquired for specific use in connection with such acquired property or (ii) other property that does not constitute property or assets of the Company or any of its Subsidiaries, (3) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (4) the aggregate amount of all Indebtedness secured by such Liens shall be permitted by the limitations set forth in Sections 10.1 and 10.3;
(j) any extensions, renewals, refundings or replacements of any Lien permitted by the preceding paragraphs (g), (h) and (i) of this Section 10.4; provided that (1) such Liens shall not be extended to cover any additional property, (2) the unpaid principal amount of Indebtedness or other obligations 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; and
(k) Liens incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue (1) overdraft protection arrangements and other related cash management programs or similar financings(2) the collection or disposition of delinquent accounts receivable which are not incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 borrowing of Infinity to secure Indebtedness money or the obtaining of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)credit.
Appears in 1 contract
Sources: Note Purchase Agreement (Macquarie Infrastructure CO LLC)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or claims that are not yet due and payable delinquent or which that are being contested in good faith and by appropriate proceedings if adequate reserves promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with respect thereto are maintainedGAAP has been made therefor;
(b) Liens imposed by law, such as carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which that are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments (other than any Lien imposed by ERISA or to perfect an appeal any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of any order or decree but only to the extentbusiness in connection with workers’ compensation, for an amount unemployment insurance, and for a period not resulting in an Event other types of Default under paragraph (h) of Article VIsocial security;
(d) pledges Liens to secure the performance of statutory obligations, surety or deposits under worker's compensationappeal bonds, unemployment insurance and other social security legislation;
(e) pledges or performance bonds, deposits to secure the performance of bids, trade contracts (other than for borrowed money)contracts, leasesgovernment contracts, statutory obligations to secure suretywarranty requirements, appeal leases or performance bonds and contractual and licenses or other obligations of a like nature or incurred in the ordinary course of business and not involving the borrowing of money(including, without limitation, landlord Liens on leased real property);
(fe) easementssurvey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, restrictions sewers, electric lines, telegraph and telephone lines and other similar encumbrances purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that 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 such Person;
(f) Liens in existence on the Closing Date listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien shall at any time encumber any additional Property after the Closing Date and that the amount of Indebtedness secured thereby shall not be increased (except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(c) 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 shall not at any time encumber any Property other than the Property financed by such Indebtedness and (iii) the amount of Indebtedness secured thereby shall not be increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by the Borrower or any other Subsidiary in the ordinary course of its business and covering only the assets so leased;
(j) judgment liens securing judgments not constituting (or which would otherwise create) an Event of Default;
(k) licenses of Intellectual Property in the ordinary course of business;
(l) liens on fixed assets existing at the time such fixed assets are acquired in connection with a Permitted Acquisition and not created in contemplation thereof;
(m) deposits in an aggregate amount not to exceed $5,000,000 at any one time outstanding made in the ordinary course of business to secure liability to insurance carriers;
(n) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and other similar Liens under leases and subleases which, arising in the aggregateordinary course of business;
(o) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, are shipment or storage of such inventory or other goods;
(p) leases or subleases granted to third Persons not material in amount, and which do not interfere in any material respects interfering with the ordinary conduct course of business of the business of Infinity 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity 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 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;
(iq) mortgages Liens on Property securing indebtedness in favor assets of a Subsidiary of the United States Borrower that is not a Subsidiary Guarantor securing Indebtedness of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, that Subsidiary; provided that such Indebtedness was permitted to be incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteSection 6.2;
(jr) Liens securing Indebtedness owed to Infinity arising out of conditional sale, title retention, consignment or to any Wholly Owned Subsidiary similar arrangements for the sale of Infinity;
(k) Liens (i) upon goods entered into by 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity Borrower or any of its Subsidiaries in connection the ordinary course of business;
(s) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such financings and other recourse customary in connection with "off-balance sheet" financings) and Capital Stock, (ii) upon such Liens do not at any time encumber any Property other than the Property Capital Stock of Infinity to secure such acquired Person and (iii) the amount of Indebtedness of Infinity in an aggregate amount secured thereby does not greater than exceed $125,000,00050,000,000;
(lt) Sale/Leasebacks consummated prior Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) or (m); provided that such Liens shall at all times be subject to the Closing Date;Second Lien Intercreditor Agreement; and
(mu) 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 propertynot otherwise permitted by this Section 6.3, and additional Sale/Leasebacks; provided, that the sum of so long as neither (i) the aggregate outstanding 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 thereby nor (ii) the aggregate Sale/Leaseback Attributable Debt with respect to Fair Market Value (determined as of the date such Sale/Leasebacks shall not exceed Lien is incurred) of the assets subject thereto exceeds the greater of $125,000,000 25,000,000 or 1.00% of Consolidated Total Assets 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 such Property or other Property of equivalent value)time.
Appears in 1 contract
Sources: Credit Agreement (B&G Foods, Inc.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies, or other statutory obligations, not yet due and payable at the time delinquent or which that are being contested in good faith and by appropriate proceedings if (provided, that adequate reserves with respect thereto to such proceedings are maintainedmaintained on the books of Parent or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) carriers'’, warehousemen's’s, landlords’, mechanics'’, contractors’, materialmen's’s, repairmen's, architects' ’s or other like Liens imposed by law or arising in the ordinary course of business or consistent with past practice which secure amounts that are not overdue for a period of more than 30 60 days or which if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, or that are being contested in good faith and by appropriate proceedingsproceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of the Group Members in conformity with GAAP), (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business or consistent with past practice and (iii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such other goods in the ordinary course of business or consistent with past practice;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(di) pledges or deposits under worker's in the ordinary course of business or consistent with past practice in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and (ii) pledges and deposits in the ordinary course of business or consistent with past practice securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Group Member;
(ed) pledges Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory obligations to secure obligations, surety, stay, customs and appeal or bonds, performance bonds and contractual and/or return of money bonds, completion guarantees and other obligations of a like nature (including those to secure health and safety or environmental obligations) incurred in the ordinary course of business or consistent with past practice and not involving the borrowing Guarantee Obligations, letters of moneycredit, indemnities (including through cash collateralization), surety bonds (including any Surety Bonds), performance bonds and similar instruments supporting such obligations;
(fe) easements, rights-of-way, covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property), encroachments, protrusions and other similar encumbrances and title defects incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases whichconsistent with past practice that, in the aggregate, are not material in amount, and which do not materially detract from the value of the Property subject thereto or materially interfere in any material respects with the ordinary conduct of the business of Infinity and its Subsidiaries the Group Members taken as a whole; provided, that none of the foregoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereofClosing Date (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies, including if disclosed on such title policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereofClosing Date, (y) disclosed on any title insurance policies obtained on Mortgaged Properties in connection with Mortgages executed and delivered after the date hereofClosing Date or (z) that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the obligations secured or benefited by such Liens is permitted by Section 6.2;
(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 thereofsecuring Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility, Replacement Facility or Extended Term Loans);
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of Parent after the date hereofClosing Date (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted by Section 6.2(g) or is Refinancing Indebtedness in respect thereof and (ii) such Liens cover solely the Property so acquired (solely to the extent not incurred in contemplation of such acquisition) or the Property of the Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto);
(l) Liens securing (x) obligations arising under any Specified Hedge Agreements entered into not for speculative purposes or (y) Cash Management Obligations in the ordinary course of business or consistent with past practice;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business or consistent with past practice;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business or consistent with past practice and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business or consistent with past practice in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(p) Licenses and sublicenses of Intellectual Property granted by any Group Member in the ordinary course of business or consistent with past practice;
(q) UCC financing statements, PPSA financing statements or similar public filings that are filed as a precautionary measure in connection with operating leases or consignment of goods in the ordinary course of business or consistent with past practice;
(r) Liens on property rented to, or leased by, any Group Member pursuant to a Sale and Leaseback Transaction; provided, that (i) such Sale and Leaseback Transaction is permitted by Section 6.10, (ii) such Liens do not encumber any other property of Parent or the Restricted Subsidiaries and the proceeds and products of and accessions to such property, and (iii) such Liens secure only the Attributable Indebtedness incurred in connection with such Sale and Leaseback Transaction;
(s) Liens on (i) the assets of Non-Loan Party Subsidiaries that secure Indebtedness or other obligations of such Non-Loan Party Subsidiaries permitted under Section 6.2, or (ii) so long as they do not constitute Collateral, the Capital Stock of Non-Loan Party Subsidiaries or joint ventures, securing Indebtedness of such Non-Loan Party Subsidiaries or joint ventures permitted under Section 6.2 (and related obligations), which, in the case of clauses (i) and (ii) shall not secure Indebtedness, in the aggregate, in excess of $50 million;
(t) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt, or any secured Incremental Equivalent Debt, and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of any of the foregoing; provided, that a Senior Representative acting on behalf of the holders of any such Indebtedness shall become subject to the provisions of a Senior Pari Passu Intercreditor Agreement, a Senior/Junior Intercreditor Agreement or other intercreditor arrangements reasonably acceptable to the Collateral Agent, as applicable;
(u) good ▇▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made in connection with a Permitted Acquisition or any other Investment (other than Investments under Section 6.7(q) or letter of intent or purchase agreement permitted hereunder);
(v) Liens not otherwise permitted by this Section 6.3 so long as the aggregate amount of obligations secured thereby does not exceed the greater of $75.0 million and 3.0% of Consolidated Total Assets at the time of incurrence thereof, provided that Liens permitted pursuant to this clause (v) may not be pari passu Liens on Collateral;
(w) Liens securing Refinancing Indebtedness permitted by Section 6.2(v) (and related obligations) if such Liens are or were permitted to secure such Indebtedness in existence at accordance with the time such Person becomes or became a Subsidiary definition of Infinity or such Person merged with or into Infinity “Refinancing Indebtedness”;
(x) Liens in favor of Parent, any other Borrower or any Subsidiary thereofGuarantor securing intercompany Indebtedness permitted hereunder;
(y) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 6.7 to be applied against the purchase price for such Investment or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 6.5, in each case, solely to the extent such Investment or Disposition, as the case may be, were not created in anticipation thereof other than to finance would have been permitted on the purchase thereof and are not spread to cover any Property other than the Property covered at the time date of the relevant transaction;
(h) Liens 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 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, all or a part of the cost (including the cost of construction) creation 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 thereonLien;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject Liens deemed to such mortgages (including without limitation such debt secured by such mortgages exist in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables and inventory Investments in an aggregate amount not greater than $400,000,000 less the aggregate amount of Indebtedness that is secured pursuant to clause (ii) belowrepurchase agreements under Section 6.7; provided, that such Liens do not extend to any assets other than those assets that are the terms subject of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) repurchase agreement, and (ii) upon the Property of Infinity reasonable customary initial deposits and margin deposits and similar Liens attaching to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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, brokerage accounts maintained in the ordinary course of business or consistent with past practice and not for speculative purposes;
(aa) Liens that are customary contractual rights of setoff relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business or consistent with past practice;
(bb) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business or consistent with past practice of the Group Members;
(cc) ground leases in respect of real property on which facilities owned or leased by any Group Member are located;
(dd) Liens on margin stock;
(ee) Liens securing obligations in respect of trade-related letters of credit permitted under Section 6.2 and incurred in the ordinary course of business or consistent with past practice of the Group Members and covering the goods (or the documents of title in respect of such Indebtedness, "Specified Section 5.5(ngoods) Indebtedness")) financed by such letters of credit and (ii) the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingproceeds and products thereof; and
(off) so long as no Event of Default shall have occurred and be continuing, other Liens securing Indebtedness secured on a pari passu basis or junior basis with the Liens securing the Term Loan A Facility, the Term Loan B Facility and the Revolving Credit Facility, the First Lien Net Leverage Ratio does not exceed 1.501.25:1.00, determined on a Pro Forma Basis (after giving effect to any extensionPro Forma Transaction, renewal or replacement including any acquisition consummated with the proceeds of the foregoingsuch Indebtedness); provided, howeverthat (x) any junior lien Indebtedness incurred in reliance of this Section 6.3(ff) shall be deemed ranking pari passu in priority of security to the Obligations in respect of the Facilities at all times for the purpose of the calculation of the First Lien Net Leverage Ratio and (y) when calculating the First Lien Net Leverage Ratio for purposes hereof, thatthe First Lien Net Leverage Ratio shall be determined without netting the proceeds from the incurrence of the Indebtedness secured by such Liens (it being understood, except for the avoidance of doubt, that such proceeds, to the extent constituting cash or Cash Equivalents, may be netted for subsequent determinations of the First Lien Net Leverage Ratio); provided, further, that (x) a Senior Representative acting on behalf of the holders of the Indebtedness secured by such Liens shall become subject to the provisions of a Senior Pari Passu Intercreditor Agreement, a Senior/Junior Intercreditor Agreement or other intercreditor arrangements reasonably acceptable to the Collateral Agent, (y) such relevant Indebtedness must otherwise permitted by this Section 5.5 (including Section 5.5(n)), satisfy the Liens permitted under this paragraph shall not be spread requirements with respect to cover the incurrence of any additional Indebtedness or Property Incremental Facility (other than with respect to any “most favored nations” pricing provisions unless such Indebtedness is secured on a substitution pari passu basis with the Obligations), and (z) the incurrence of like Property or improvements on any Indebtedness secured by Liens pursuant to this clause (ff), regardless of the date of such Property or other Property incurrence, shall be subject to the satisfaction of equivalent valuethe conditions set forth in clauses (d)(ii)., (d)(iii) and (d)(iv) of Section 2.23 in the same manner as if such Indebtedness were Incremental Equivalent Deb
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, create, incur, assume Create or suffer to exist any Lien upon any of its Property, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply to:
except: (ai) Liens at any time granted in favor of Lender; (ii) Liens for taxes (excluding any Lien imposed by pursuant to any Governmental Authority for taxes, assessments or charges of the provisions of ERISA) not yet due or being contested as permitted by Section 7.1(A) hereof, but only if in Lender's reasonable judgment such Lien does not affect adversely Lender's rights or the priority of Lender's Lien in the Collateral, (iii) Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and payable other like Persons for labor, materials, supplies or which rentals incurred in the ordinary course of Borrower's business, but only if the payment thereof is not at the time required (or if payment is required, only if and for so long as the execution or other enforcement of such Liens is and continues to be effectively stayed and bonded in a manner satisfactory to Lender for the full amount thereof, the validity and amount of the claims secured thereby are being actively contested in good faith and by appropriate lawful proceedings and such Liens do not, in the aggregate, materially detract from the value of the Property of Borrower or materially impair the use thereof in the operation of Borrower's business) and only if adequate reserves with respect thereto such Liens are maintained;
junior to the Liens in favor of Lender; (biv) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' liens incurred or other like Liens arising deposits made in the ordinary course of business which are not overdue in connection with workmen's compensation, unemployment insurance, social security and other like laws, (v) attachment, judgment and other similar non-tax Liens arising in connection with court proceedings, but only if and for so long as the execution or other enforcement of such Lien is and continues to be effectively stayed and bonded on appeal in a period manner satisfactory to Lender for the full amount thereof, the validity and amount of more than 30 days or which the claims secured thereby are being actively contested in good faith and by appropriate proceedings;
(c) lawful proceedings and such Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an 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) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases whichdo not, in the aggregate, are materially detract from the value of the Property of Borrower or materially impair the use thereof in the operation or Borrower's business, (vi) Purchase Money Liens on fixed assets of Borrower other than real estate and not material in amountotherwise inconsistent with the terms of this Agreement, (vii) reservations, exceptions, easements, rights of way, and which other similar encumbrances affecting real Property, provided that, in Lender's sole judgment, they do not in the aggregate materially detract from the value of said Properties or materially interfere with their use in any material respects with the ordinary conduct of the Borrower's business of Infinity and its Subsidiaries taken as a whole;
(g) Liens on and, if said real Property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity or any Subsidiary thereof; providedconstitutes Collateral, 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 thereofLender has consented thereto, 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (iiviii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on the Closing Date and listed such other Liens as may be expressly disclosed on Schedule 5.5(m);
(n7.2(E) 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 such Property or other Property of equivalent value)attached hereto.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxesTaxes, assessments or governmental charges or levies, or other statutory obligations, not yet due and payable at the time delinquent or which that are being contested in good faith and by appropriate proceedings if (provided, that adequate reserves with respect thereto to such proceedings are maintainedmaintained on the books of the Lead Borrower or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) carriers'’, warehousemen's’s, landlords’, mechanics'’, contractors’, materialmen's’s, repairmen's, architects' ’s or other like Liens imposed by law or arising in the ordinary course of business which secure amounts that are not overdue for a period of more than 30 60 days or which if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, or that are being contested in good faith and by appropriate proceedingsproceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of the Group Members in conformity with GAAP), (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and (iii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such other goods in the ordinary course of business;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(di) pledges or deposits under worker's in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Group Member;
(ed) pledges Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory obligations to secure obligations, surety, stay, customs and appeal or bonds, performance bonds and contractual and/or return of money bonds, completion guarantees and other obligations of a like nature (including those to secure health and safety or environmental obligations) incurred in the ordinary course of business;
(e) easements, rights-of-way, covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property and Liens to public utilities or any municipality when required in connection with the supply of services or utilities to a Loan Party), encroachments, protrusions and other similar encumbrances and title defects incurred in the ordinary course of business that, in the aggregate, do not materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of the Group Members taken as a whole; provided, that none of the foregoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereof (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies, including if disclosed on such title policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereof, or (y) on real property that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the Table of Contents property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the obligations secured or benefited by such Liens is permitted under Section 6.2;
(g) Liens securing Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations and Attributable Indebtedness); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility, Extended Revolving Credit Commitments, Specified Hedge Agreements and Cash Management Obligations, including, with respect to any Specified Hedge Agreements, Liens created pursuant to the Loan Documents on any margin or collateral posted by any Group Member under a Specified Hedge Agreement as a result of any regulatory requirement, swap clearing organizations, or other similar regulations, rule, or requirement);
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of the Lead Borrower after the date hereof (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted under Section 6.2(g) or is Refinancing Indebtedness in respect thereof, (ii) such Liens cover solely the Property so acquired or the Property of the Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto) and (iii) the Administrative Agent may in its reasonable discretion require any Liens on ABL Priority Collateral (as defined in the ABL Intercreditor Agreement) securing Indebtedness incurred under Section 6.2(g) in excess of $100.0 million be junior to the Liens on ABL Priority Collateral securing the Obligations pursuant to the ABL Intercreditor Agreement or another intercreditor agreement reasonably acceptable to the Administrative Agent;
(l) Liens securing (x) Indebtedness permitted under Section 6.2(h) or any Refinancing Indebtedness in respect thereof, (y) obligations arising under any Specified Hedge Agreements (as defined in the Term Loan Credit Agreement as in effect on the date hereof) entered into not for speculative purposes or (z) Cash Management Obligations (as defined in the Term Loan Credit Agreement as in effect on the date hereof) in the ordinary course of business; provided, that any Liens on ABL Priority Collateral shall be junior to the Liens securing the Obligations pursuant to the ABL Intercreditor Agreement and/or another intercreditor agreement reasonably acceptable to the Administrative Agent;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder; Table of Contents
(n) Liens arising out of conditional sale, installment sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the borrowing case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(fp) easementslicenses and sub licenses of Intellectual Property granted by any Group Member;
(q) Liens arising from Uniform Commercial Code or PPSA (or equivalent statutes) financing statement filings regarding operating leases or consignments entered into by the Lead Borrower and its Restricted Subsidiaries in the ordinary course of business or consistent with industry practice or purported Liens evidenced by the filing of precautionary Uniform Commercial Code or PPSA (or equivalent statutes) financing statements or similar public filings and not relating to Indebtedness for borrowed money;
(r) Liens on property rented to, rightsor leased by, any Group Member pursuant to a Permitted Sale Leaseback; provided, that (i) such Liens do not encumber any other property of any Group Member and the proceeds and products of and accessions to such property, and (ii) such Liens secure only the Attributable Indebtedness incurred in connection with such Sale and Leaseback Transaction;
(s) Liens on (i) the assets (including Capital Stock) owned by any Non-Loan Party Subsidiaries that secure Indebtedness or other obligations of Non-Loan Party Subsidiaries permitted under this Agreement, (ii) the Capital Stock of Non-Loan Party Subsidiaries or joint ventures, securing Indebtedness of such Non-Loan Party Subsidiaries or joint ventures permitted under Section 6.2 (and related obligations) or (iii) the Capital Stock of Unrestricted Subsidiaries;
(t) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt (as defined in the Term Loan Credit Agreement), any Incremental Equivalent Debt (other than unsecured Incremental Equivalent Debt) or any Permitted Debt Exchange Notes (in each case, as defined in the Term Loan Credit Agreement as in effect as of the date hereof), and any Permitted Refinancing of-way, restrictions and any Guarantee Obligations by the Guarantors in respect of, any of the foregoing; provided, that any Liens on ABL Priority Collateral are junior to the Liens securing the Obligations pursuant to the ABL Intercreditor Agreement or another intercreditor agreement reasonably acceptable to the Administrative Agent;
(u) good ▇▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made in connection with a Permitted Acquisition or any other Investment (other than Investments under Section 6.7(q)) or letter of intent or purchase agreement permitted hereunder;
(v) Liens not otherwise permitted by this Section 6.3 so long as the aggregate amount of obligations secured thereby does not exceed the greater of $65.0 million and 40.0% of Consolidated EBITDA for the Relevant Reference Period at the time of incurrence thereof; provided that (i) Liens permitted pursuant to this clause (v) may be junior to or pari passu with Liens on any Term Priority Collateral (as defined in the ABL Table of Contents Intercreditor Agreement) and (ii) any such Liens on ABL Priority Collateral are junior to the Liens securing the Obligations and the agent or other representative for the holders of such Liens shall have become a party to the ABL Intercreditor Agreement or another intercreditor agreement reasonably acceptable to the Administrative Agent;
(w) Liens securing Refinancing Indebtedness permitted under Section 6.2(v) (and related obligations) if such Liens are permitted to secure such Indebtedness in accordance with the definition of “Refinancing Indebtedness”;
(x) Liens in favor of Holdings, any Borrower or any Subsidiary Guarantor securing intercompany Indebtedness permitted hereunder;
(y) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 6.7 to be applied against the purchase price for such Investment or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 6.5, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(i) Liens deemed to exist in connection with Investments in repurchase agreements under Section 6.7; provided, that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement, and (ii) reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(aa) Liens that are customary contractual rights of setoff relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business;
(bb) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar encumbrances agreements entered into in the ordinary course of business of the Group Members;
(cc) ground leases in respect of real property on which facilities owned or leased by any Group Member are located;
(dd) Liens on Permitted Receivables Financing Assets securing any Permitted Receivables Financing and Liens on Qualified Securitization Assets securing any Qualified Securitization Facility;
(ee) Liens securing obligations in respect of trade-related letters of credit permitted under Section 6.2 and incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Group Members and covering the goods (or the documents of Infinity title in respect of such goods) financed by such letters of credit and its Subsidiaries taken as a wholethe proceeds and products thereof;
(gff) Liens on Property of any Subsidiary of Infinity or of any Person securing Indebtedness permitted under Section 6.2(f) (other than Permitted Ratio Debt that constitutes unsecured Indebtedness), which is or was merged with or into Infinity or any Subsidiary thereofmay be secured by the Collateral; provided, that any Liens on ABL Priority Collateral are junior to the Liens securing the Obligations and the relative Lien priority in respect of any such Liens are Indebtedness shall be set forth in the ABL Intercreditor Agreement or were in existence at another intercreditor agreement reasonably acceptable to the time such Person becomes or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereof, as Administrative Agent and 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 transactionBorrowers;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(kgg) Liens (i) upon the receivables on cash and inventory of Infinity or any of its Subsidiaries Cash Equivalents 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 obligations under Hedge Agreements of the obligations secured type described in Section 6.2(n), including Liens on any margin or collateral posted 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 (Group Member under any such IndebtednessHedge Agreement as a result of any regulatory requirement, "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 extensionswap clearing organizations, 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 such Property or other Property of equivalent value).s
Appears in 1 contract
Sources: Abl Credit Agreement (Foundation Building Materials, Inc.)
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, the properties or enter into any Sale/Leaseback with respect to any such Property, whether assets which it now owned owns or hereafter acquired; providedacquires, that except the foregoing restrictions shall not apply to:following (“Permitted Liens”):
(a) Liens securing (i) on a pari passu basis, both (x) the Obligations and (y) the Liabilities of any Restricted Person arising under the US/Canada Credit Agreement, and (ii) if required, any related interest hedge rate agreements;
(b) Liens securing Indebtedness of Plains Marketing under the Contango Credit Agreement at any one time outstanding not in excess of $300,000,000 on (i) Petroleum Products subject to Cash and Carry Purchases financed pursuant to the Contango Credit Agreement, (ii) hedging contracts covering such Petroleum Products, (iii) contracts for the purchase or sale of such Petroleum Products and accounts receivable arising therefrom, and (iv) all proceeds of the foregoing;
(c) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 is being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal , if necessary, for which adequate reserves are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting Restricted Person in an Event of Default under paragraph (h) of Article VIaccordance with GAAP;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(e) pledges 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, if necessary, by appropriate proceedings, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(f) Liens on cash and Cash Equivalents under or with respect to accounts with brokers or counterparties with respect to hedging contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing only hedging contracts;
(g) deposits of cash or securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fh) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property in respect 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 transactionoperating leases;
(hj) Liens upon real and/or personal any property or assets directly or indirectly acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed); and improvements thereon;
any extension, renewal, refinancing, refunding or replacement (i) mortgages on Property securing indebtedness or successive extensions, renewals, refinancings, refundings or replacements), in favor whole or part, of the United States of America foregoing, provided, however, that such Liens shall not cover or secure any state thereof additional Indebtedness, obligations, property or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityasset;
(k) Liens (i) upon the receivables and inventory of Infinity rights reserved to or vested in 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 governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such Indebtedness do not provide for any recourse right, power, franchise, grant, license or permit or to Infinity condemn or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity acquire by eminent domain or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000similar process;
(l) Sale/Leasebacks consummated prior 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 Dateproperties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws;
(m) rights reserved to the grantors of any Sale/Leaseback properties of assets any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of Infinity owned on the Closing Date and listed on Schedule 5.5(m)any rights-of-way agreements, contracts or other agreements therewith;
(n) additional inchoate Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.1;
(io) the Liens securing obligations in an aggregate principal amount not to exceed at any time outstanding 10% of Borrower’s Consolidated Tangible Net Worth; and
(p) Liens related to the obligations secured by such Liens extension, renewal, refinancing, refunding or replacement (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 successive extensions, renewals, refinancings, refundings or any of its Subsidiaries in satisfactionreplacements), in whole or in part, of indebtedness to Infinity or any of its Subsidiariesclauses (a), in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")b) 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 foregoingthis Section 7.2; provided, however, that, except to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), the that such Liens permitted under this paragraph shall not be spread to cover or secure any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Indebtedness.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Plains All American Pipeline Lp)
Limitation on Liens. Infinity will The Company shall not, and will not nor shall it permit any of its Material Subsidiaries Subsidiary to, create, incur, assume incur or suffer permit to exist any Lien upon of any of its Property, or enter into kind on any Sale/Leaseback with respect to Property owned by any such Property, whether now owned or hereafter acquiredPerson; provided, however, that the foregoing restrictions shall not apply toto nor operate to prevent:
(a) Liens imposed arising by any Governmental Authority for statute in connection with worker's compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments assessments, statutory obligations or other similar charges (other then Liens arising under ERISA), good faith cash deposits in connection with tenders, contracts or leases to which the Company or any Subsidiary is a party or other cash deposits required to be made in the ordinary course of business, provided in each case that the obligation is not yet for borrowed money and that the obligation secured is not overdue 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 in the ordinary course of business with respect to obligations which are not due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in which prevent enforcement of 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;
matter under contest; (c) Liens the pledge of assets (other than the Intellectual Property of the Company or any Subsidiary) for the purpose of securing judgments an appeal, stay or to perfect an appeal discharge in the course of any order or decree but only to legal proceeding, provided that the extentaggregate amount of liabilities of the Company and its Subsidiaries secured by a pledge of assets permitted under this subsection, for an amount including interest and for a period penalties thereon, if any, shall not resulting be in an Event excess of Default under paragraph (h) of Article VI;
$250,000 at any one time outstanding; (d) pledges any interest or deposits title of a lessor under worker's compensation, unemployment insurance and other social security legislation;
any operating lease; (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) easements, rights-of-way, restrictions and other similar encumbrances against real property incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, amount and which do not materially detract from the value of the Property subject thereto or materially interfere in any material respects with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a whole;
the Company or any Subsidiary; (f) the Liens identified on Schedule 7.2; (g) Liens on Property of any Subsidiary of Infinity or of any Person which is or was merged cash deposited with or into Infinity account debtors to secure performance by the Company 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 subject to customary and reasonable terms; (any such Indebtednessh) set-off rights of depository institutions; and (i) Liens created by the Security Agreement (collectively, "Specified Section 5.5(n) IndebtednessPermitted Liens")) 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 such Property or other Property of equivalent value).
Appears in 1 contract
Sources: Senior Note and Warrant Purchase Agreement (Cardiac Science Inc)
Limitation on Liens. Infinity The Parent will not, and nor will not it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if if, unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintainedmaintained on the books of the Parent or any of its Material Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity the Parent or any of its Material Subsidiaries; 41
(f) Liens on assets of Persons that become Subsidiaries of the Parent after the date of this Agreement; provided that such Liens are in existence at the time the respective Persons become Subsidiaries of the Parent and its Subsidiaries taken as a wholewere not created in anticipation thereof;
(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 upon real and/or tangible personal property acquired after the date hereof (by purchase, construction, foreclosure, deed in lieu of foreclosure construction or otherwise) by Infinity the Parent or any of its Material Subsidiaries, each of which Liens either (A) existed on such Property property before the time of its acquisition and was not created in anticipation thereof 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 the respective property; provided in the case of clause (B) that such Property Lien attaches to such asset within 270 days after the acquisition or improvements thereoncompletion of construction and commencement of full operations thereof; provided, provided further that no such Lien shall extend to or cover any Property property of Infinity the Parent or such Material Subsidiary other than the respective Property 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 95% of the fair market value (as determined in good faith by a senior financial officer of the Parent) of the respective property at the time it was acquired (by purchase, construction or otherwise);
(h) Liens on assets consisting of a capital project and rights related thereto ("Project Assets") securing Indebtedness incurred to finance the acquisition, construction or development of such Project Assets; provided that (x) such Indebtedness is non-recourse to any other assets; (y) the aggregate principal amount of Indebtedness secured by Liens permitted by this paragraph (h) may at no time exceed $425,000,000 and (z) such Liens attach to such Project Assets within two years after the initial acquisition or completion of construction or development of such Project Assets;
(i) mortgages on Property securing indebtedness Liens upon real and/or personal property of the Parent or any Material Subsidiary of the Parent in favor of the United States of America or any state thereof or State thereof, any department, agency or instrumentality or political subdivision of the United States of America or any state State thereof, or any bonding authority (including any authority established for the issuance of industrial revenue bonds or similar instruments) to secure partial, progress, or advance or other payments pursuant to any contract or statute or to secure Indebtedness (including, but not limited to, industrial revenue bonds and similar instruments) incurred for the purpose of financing refinancing all or any part of the purchase price or the cost of construction of the Property subject to constructing or improving such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteproperty;
(j) Liens securing Indebtedness owed to Infinity on accounts receivable and related contract rights, letters of credit, accounts and similar assets arising in connection with any securitization transaction, and Liens on promissory notes, regulatory and any other related assets in connection with any financing transaction, in each case whether denominated as sales or to any Wholly Owned Subsidiary of Infinityborrowings;
(k) Liens (i) upon granted to provide security in substitution for collateral presently securing existing Indebtedness, so long as such substitute collateral does not cover any property other than the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of property securing 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) belowexisting Indebtedness; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;42
(l) Sale/Leasebacks consummated prior Liens securing judgments up to $200,000,000 for the Closing Datepayment of money in an amount not resulting (whether immediately or with the passage of time) in an Event of Default under subsection (h) of Article VII;
(m) any Sale/Leaseback of assets of Infinity owned Liens in existence on the Closing Date date hereof and listed on Schedule 5.5(m)V;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; providedassets or revenues created after the date hereof, provided that the sum of (i) aggregate outstanding Indebtedness secured thereby and incurred on and after 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 date hereof shall not exceed $125,000,000 at any one time outstandingexceed 10% of Tangible Assets; 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)), that the Liens permitted under this paragraph hereunder shall not be spread to cover any additional Indebtedness or Property property (other than a substitution of like Property or improvements on such Property property); and provided further that the sale, mortgage or other Property transfer of equivalent value)timber in connection with an arrangement under which the Parent or any of its Subsidiaries is obligated to cut such timber (or any portion thereof) in order to provide the transferee with a specified amount of money (however determined) shall not be deemed to create Indebtedness secured by a Lien hereunder.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer allow to exist exist, any Lien upon any of its Propertyproperty, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or held or hereafter acquired; provided, that the foregoing restrictions shall not apply toincluding attachment, levy, garnishment or other judicial process relating to such property, except:
(a) Liens in existence on the date hereof and listed on Schedule 5.3 hereof;
(b) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or which that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower, in accordance with GAAP;
(bc) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which that are not overdue for a period of more than 30 days or which that are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments proceedings if adequate reserves with respect thereto are maintained or to perfect an appeal the books of any order or decree but only to the extentBorrower, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIaccordance with GAAP;
(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 moneyIndebtedness), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property property or minor imperfections in title thereto and Liens under leases and subleases whichthat, in the aggregate, are not material in amount, and which that do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and the Borrower or any of its Subsidiaries taken as a wholeSubsidiaries;
(g) Liens on Property upon Capital Equipment to secure purchase money Indebtedness or Capital Lease of any the Borrower or a Subsidiary of Infinity or of any Person which is or was merged with or into Infinity or any Subsidiary thereofpermitted under Section 5.1(a); provided, that that, (i) such Liens are Lien does not extend to or were in existence at cover any other property of the time such Person becomes or became a Subsidiary of Infinity Borrower or such Person merged with or into Infinity or Subsidiary and (ii) such Lien does not secure 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 Indebtedness other than the Property covered at the time of the relevant transactionIndebtedness so incurred;
(h) Liens arising from or upon real and/or personal property acquired any judgment or award, provided that such judgment or award does not exceed $50,000 and 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 (by purchase30) days, 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 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, all or a part of the cost (including the cost of construction) of such Property or improvements thereononly so long as execution thereon shall be stayed; 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;and
(i) mortgages on Property securing indebtedness in favor of the United States of America Liens now or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except hereafter granted to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon Lender under the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Cell Genesys Inc)
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, the properties or enter into any Sale/Leaseback with respect to any such Property, whether assets which it now owned owns or hereafter acquired; providedacquires, that except the foregoing restrictions shall not apply to:following ("Permitted Liens"):
(a) Liens securing (i) on a pari passu basis, the Obligations and (ii) if required, any related interest hedge rate agreements;
(b) Liens securing Indebtedness of Plains Marketing under the Contango Credit Agreement at any one time outstanding not in excess of $500,000,000 on (i) Petroleum Products subject to Cash and Carry Purchases financed pursuant to the Contango Credit Agreement, (ii) hedging contracts covering such Petroleum Products, (iii) contracts for the purchase or sale of such Petroleum Products and accounts receivable arising therefrom, and (iv) all proceeds of the foregoing;
(c) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are is being contested in good faith and by appropriate proceedings proceedings, if necessary, for which adequate reserves are maintained on the books of any Restricted Person in accordance with respect thereto are maintainedGAAP;
(bd) pledges or deposits of cash or securities under worker's compensation, unemployment insurance or other social security legislation;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 overdue for a period of more than 30 60 days past due or the validity of which are is being contested in good faith and and, if necessary, by appropriate proceedings, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(cf) Liens on cash and Cash Equivalents under or with respect to accounts with brokers or counterparties with respect to hedging contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIhedging contracts;
(dg) pledges deposits of cash or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fh) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property in respect 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 transactionoperating leases;
(hj) Liens upon real and/or personal any property or assets directly or indirectly acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed); and improvements thereon;
any extension, renewal, refinancing, refunding or replacement (i) mortgages on Property securing indebtedness or successive extensions, renewals, refinancings, refundings or replacements), in favor whole or part, of the United States of America foregoing, provided, however, that such Liens shall not cover or secure any state thereof additional Indebtedness, obligations, property or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityasset;
(k) Liens (i) upon the receivables and inventory of Infinity rights reserved to or vested in 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 governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such Indebtedness do not provide for any recourse right, power, franchise, grant, license or permit or to Infinity condemn or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity acquire by eminent domain or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000similar process;
(l) Sale/Leasebacks consummated prior 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 Dateproperties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws;
(m) rights reserved to the grantors of any Sale/Leaseback properties of assets any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of Infinity owned on the Closing Date and listed on Schedule 5.5(m)any rights-of-way agreements, contracts or other agreements therewith;
(n) additional inchoate Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.1;
(io) the Liens securing obligations in an aggregate principal amount not to exceed at any time outstanding 10% of US Borrower's Consolidated Tangible Net Worth; and
(p) Liens related to the obligations secured by such Liens extension, renewal, refinancing, refunding or replacement (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 successive extensions, renewals, refinancings, refundings or any of its Subsidiaries in satisfactionreplacements), in whole or in part, of indebtedness to Infinity or any of its Subsidiariesclauses (a), in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")b) 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 foregoingthis Section 7.2; provided, however, that, except to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), the that such Liens permitted under this paragraph shall not be spread to cover or secure any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Indebtedness.
Appears in 1 contract
Limitation on Liens. Infinity The Guarantor will not, and nor will not it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if if, unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintainedmaintained on the books of the Guarantor or any of its Material Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenseslicences, restrictions on the use of Property property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity the Guarantor or any of its Material Subsidiaries;
(f) Liens on assets of Persons that become Subsidiaries of the Guarantor after the date of this Agreement, provided that such Liens are in existence at the time the respective Persons become Subsidiaries of the Guarantor and its Subsidiaries taken as a wholewere not created in anticipation thereof;
(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 upon real and/or tangible personal property acquired after the date hereof (by purchase, construction, foreclosure, deed in lieu of foreclosure construction or otherwise) by Infinity the Guarantor or any of its Material Subsidiaries, each of which Liens either (Ai) existed on such Property property before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 the respective property; provided in the case of paragraph (ii) that such Property Lien attaches to such asset within 270 days after the acquisition or improvements thereoncompletion of construction and commencement of full operations thereof; provided, provided further that no such Lien shall extend to or cover any Property property of Infinity the Guarantor or such Material Subsidiary other than the respective Property 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 95 per cent. of the fair market value (as determined in good faith by a senior financial officer of the Guarantor) of the respective property at the time it was acquired (by purchase, construction or otherwise);
(h) Liens on assets consisting of a capital project and rights related thereto (Project Assets) securing Indebtedness incurred to finance the acquisition, construction or development of such Project Assets; provided that (i) such Indebtedness is non-recourse to any other assets; (ii) the aggregate principal amount of Indebtedness secured by Liens permitted by this paragraph (h) may at no time exceed US$425,000,000 and (iii) such Liens attach to such Project Assets within two years after the initial acquisition or completion of construction or development of such Project Assets;
(i) mortgages on Property securing indebtedness Liens upon real and/or personal property of the Guarantor or any Material Subsidiary of the Guarantor in favor favour of the United States of America or any state thereof or State thereof, any department, agency or instrumentality or political subdivision of the United States of America or any state State thereof, or any bonding authority (including any authority established for the issuance of industrial revenue bonds or similar instruments) to secure partial, progress, or advance or other payments pursuant to any contract or statute or to secure Indebtedness (including, but not limited to, industrial revenue bonds and similar instruments) incurred for the purpose of financing refinancing all or any part of the purchase price or the cost of construction of the Property subject to constructing or improving such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteproperty;
(j) Liens securing Indebtedness owed to Infinity on accounts receivable and related contract rights, letters of credit, accounts and similar assets arising in connection with any securitisation transaction, and Liens on promissory notes, regulatory and any other related assets in connection with any financing transaction, in each case whether denominated as sales or to any Wholly Owned Subsidiary of Infinityborrowings;
(k) Liens (i) upon granted to provide security in substitution for collateral presently securing existing Indebtedness, so long as such substitute collateral does not cover any property other than the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of property securing 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000existing Indebtedness;
(l) Sale/Leasebacks consummated prior Liens securing judgments up to US$200,000,000 for the Closing Datepayment of money in an amount not resulting (whether immediately or with the passage of time) in an Event of Default under Clause 21 (Default);
(m) any Sale/Leaseback of assets of Infinity owned Liens in existence on the Closing Date and date hereof:
(i) which in aggregate do not exceed 7.5 per cent. of Tangible Assets; or
(ii) are listed on in Schedule 5.5(m6 (Existing Liens);
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; providedassets or revenues created after the date hereof, provided that the sum of (i) aggregate outstanding Indebtedness secured thereby and incurred on and after 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 date hereof shall not exceed $125,000,000 at any one time outstandingexceed 10 per cent. of Tangible Assets; 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)), that the Liens permitted under this paragraph hereunder shall not be spread to cover any additional Indebtedness or Property property (other than a substitution of like Property or improvements on such Property property); and provided further that the sale, mortgage or other Property transfer of equivalent value)timber in connection with an arrangement under which the Guarantor or any of its Subsidiaries is obligated to cut such timber (or any portion thereof) in order to provide the transferee with a specified amount of money (however determined) shall not be deemed to create Indebtedness secured by a Lien hereunder.
Appears in 1 contract
Sources: Credit Facility Agreement (International Paper Co /New/)
Limitation on Liens. Infinity will not, and The Borrower will not permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed in favor of the Lender created by any Governmental Authority the Security Documents; (b) Liens for taxes, assessments or charges taxes not yet due and payable due, or which are being contested in good faith and by appropriate proceedings if (i) adequate reserves with respect thereto are maintained;
maintained on the books of the Borrower in accordance with GAAP and (bii) such contest does not involve any risk of the sale, forfeiture or loss of any of the Collateral; (c) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which secure payment of sums which are not overdue for a period of more than 30 days 45 days, or are bonded, or which are being contested in good faith and by appropriate proceedings;
proceedings if (ci) Liens securing judgments adequate reserves with respect thereto are maintained on the books of the Borrower in accordance with GAAP and (ii) such contest does not involve any risk of the sale, forfeiture or to perfect an appeal loss of any order or decree but only to of the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
Collateral; (d) pledges or deposits under workerliens in connection with workmen's compensation, unemployment insurance and other social security legislation;
; (e) pledges or deposits to secure the performance of bidsstatutory obligations, trade contracts (other than for borrowed money)surety and appeal bonds, 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;
business; (f) easements, Permitted Exceptions; (g) rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity 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 thereofthe Borrower; 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) precautionary UCC filings with respect to property subject to leases permitted pursuant to Section 9.7; (1) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States Lender on a pari passu basis with the Liens specified in clause (a) above for purposes of America or any state thereof or any department, agency or instrumentality or political subdivision of securing Indebtedness provided by the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages Lender specified in connection with pollution control, industrial revenue or similar financingsSection 9.1(d) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
hereof; (j) pre-existing Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
encumbering the Borrower's property and set forth in Schedule 7 hereto; (k) Liens representing purchase money security interest in the steam boilers acquired from IMTT and securing the Indebtedness specified in Section 9.1(e); (i1) upon the receivables Liens on the steam boilers acquired from IMTT arising under the Option Agreement; 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on Liens superior (in form and substance satisfactory to the Closing Date and listed on Schedule 5.5(m);
(nLender) additional to the 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 specified in clause (fa) of above, on revenues received under the definition thereof which has not been assumed by Infinity or any of its Subsidiaries and where Power Purchase Agreements securing the Lien relates to Property acquired by Infinity or any of its Subsidiaries Indebtedness specified 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 such Property or other Property of equivalent value9.1(c).
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries Restricted Subsidiary to, create, create or incur, assume or suffer to exist be incurred or to exist, any Lien upon any of on its Property, or enter into any Sale/Leaseback with respect to any such Propertytheir property or assets, whether now owned or hereafter acquired; provided, that or upon any income or profits therefrom, or transfer any property for the foregoing restrictions shall not apply topurpose 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 imposed by any Governmental Authority for taxes, 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 yet due and payable or which are being contested in good faith and at the time required by appropriate proceedings if adequate reserves with respect thereto are maintainedSection 9.4;
(b) carriers'Liens of or resulting from any judgment or award, warehousemen'sthe time for the appeal or petition for rehearing of which shall not have expired, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in respect of which the ordinary course of business which are not overdue for Company or a period of more than 30 days or which are being contested Restricted Subsidiary at the applicable time in good faith shall be prosecuting an appeal or proceeding for a review and by appropriate proceedingsin respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only incidental to the extent, for an amount conduct of business or the ownership of properties and for a period not resulting assets (including Liens in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under connection with worker's ’s compensation, unemployment insurance and other social security legislation;
(elike laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens) pledges or deposits and Liens to secure the performance of bids, tenders or trade contracts (other than for borrowed money)contracts, leases, statutory obligations or to secure suretystatutory obligations, surety or appeal bonds or performance bonds and contractual and other obligations Liens of a like nature general nature, in any such case incurred in the ordinary course of business and not involving in connection with the borrowing of money; provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings;
(fd) easementsminor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, restrictions utilities and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of purposes, or zoning restrictions, easements, licenses, or other restrictions on as to the use of Property real properties, which are necessary for the conduct of the activities of the Company and its Restricted Subsidiaries or minor imperfections which customarily exist on properties of Persons engaged in title thereto similar activities and Liens under leases and subleases which, in the aggregate, are not material in amount, similarly situated and which do not interfere in any material respects with event materially impair their use in the ordinary conduct operation of the business of Infinity the Company and its Subsidiaries taken Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to another Wholly-owned Restricted Subsidiary;
(f) Liens existing on the date hereof as a wholedescribed on Schedule 10.3;
(g) Liens on Property of any Subsidiary of Infinity fixed or of any Person which is capital assets acquired, constructed or was merged with or into Infinity improved by the Company or any Subsidiary thereofRestricted Subsidiary; providedprovided that (i) such security interests secure Indebtedness permitted by Section 10.2, that (ii) such Liens and the Indebtedness secured thereby are incurred prior to or were in existence at within 90 days after such acquisition or the time completion of such Person becomes construction or became a Subsidiary improvement, (iii) the Indebtedness secured thereby does not exceed 100% of Infinity the cost of acquiring, constructing or improving such Person merged with fixed or into Infinity capital assets, and (iv) such security interests shall not apply to any other property or assets of the Company or any Subsidiary thereofRestricted Subsidiary, as the case may be, were not created in anticipation thereof other than to finance proceeds of such fixed or capital assets acquired, constructed or improved by the purchase thereof and are not spread to cover Company or any Property other than the Property covered at the time of the relevant transactionRestricted Subsidiary;
(h) other Liens 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 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, all or a part obligations 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 Company and its Restricted Subsidiaries other than as described in the respective Property so acquired and improvements thereon;
foregoing clauses (ia) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any departmentthrough (g) immediately preceding, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 provided that is secured pursuant to clause (ii) below; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 all such other Liens do not exceed at any time fifteen percent (other than Indebtedness as defined in clause (f15%) of the definition thereof which has not been assumed by Infinity or any Consolidated Total Assets at the end 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 most recent fiscal quarter with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstanding; and
which financial statements have been delivered in accordance with the requirements of Section 7.1(a) or (ob) any extension, renewal of this Agreement or replacement the Prior Agreement. Without limitation of the foregoing; providedforegoing provisions of this Section 10.3, howeverthe Company will not permit the Bank Credit Agreement to be secured by a consensual Lien unless the Notes are simultaneously secured pursuant to terms and provisions, thatincluding an intercreditor agreement, except reasonably satisfactory 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 such Property or other Property of equivalent value)Required Holders.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Cubic Corp /De/)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of Holdings, the Borrower or their respective Subsidiaries, as the case may be, in conformity with GAAP or other applicable accounting standards;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which that are being contested in good faith and by appropriate proceedings; provided that adequate reserves with respect thereto are maintained in the books of the applicable First Lien Loan Party, in conformity with GAAP or other applicable accounting standard;
(c) Liens securing judgments pledges or to perfect an appeal deposits in connection with workers’ compensation, unemployment insurance and other social security legislation or letters of any order credit or decree but only to the extent, for an amount and for a period not resulting guarantees issued in an Event of Default under paragraph (h) of Article VIrespect thereof;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(e) pledges by or deposits on behalf of Holdings or any of its Subsidiaries to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing or letters of moneycredit or guarantees issued in respect thereof;
(fe) easements, zoning restrictions, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases whichthat, in the aggregate, are not material substantial in amount, amount and which do not interfere in any material respects case materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of Infinity Holdings, the Borrower or any of their respective Subsidiaries or in the case of owned Real Estate subject to a Mortgage, encumbrances disclosed in the title insurance policy issued to each Agent;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f), securing Indebtedness permitted by Section 7.2(b)(iv), provided that no such Lien is spread to cover any additional Property after the Closing Date and its Subsidiaries taken as a wholethat the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of Holdings, the Borrower or any of their respective Subsidiaries incurred pursuant to Section 7.2(b)(iii) 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, (iii) the amount of Indebtedness secured thereby is not increased and (iv) the amount of Indebtedness initially secured thereby is not less than 80% or more than 100% of the purchase price of such fixed or capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by Holdings or any of its Subsidiaries in the ordinary course of its business and covering only the assets so leased;
(j) licenses, leases and subleases granted to others in the ordinary course of business not interfering in any material respect with the business of Holdings, the Borrower and their respective Subsidiaries;
(k) (i) subject to the Second Lien Intercreditor Agreement, Liens on Property the First Lien Collateral (as defined in the Second Lien Intercreditor Agreement) securing the obligations under the First Lien Documentation and Permitted First Lien Refinancing Indebtedness and (ii) subject to the ABL Intercreditor Agreement, Liens on the Revolving Credit Primary Collateral (as defined in the ABL Intercreditor Agreement) securing the obligations under the Revolving Loan Agreement and Permitted Revolving Loan Refinancing Indebtedness.
(l) Liens arising from precautionary UCC financing statements in respect of leases permitted by this Agreement;
(m) judgment Liens in respect of judgments that do not constitute an Event of Default under clause (i) of Section 8;
(n) any Subsidiary of Infinity Lien existing on any property or asset prior to the acquisition thereof in accordance with the terms hereof or existing on any property or asset of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes or became a Subsidiary in accordance with the terms hereof; provided that (i) such Lien is not created in contemplation of Infinity or in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, as the case may be, were (ii) such Lien shall not created in anticipation thereof apply to any other than to finance the purchase thereof and are not spread to cover any Property other than the Property covered at the time property or assets of the relevant transactionHoldings, the Borrower and their other Subsidiaries and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof or otherwise alter the terms of such Lien in any material respect;
(ho) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States holders of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteSubordinated Indebtedness;
(jp) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 otherwise permitted by this Section 7.3 so long as 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 outstanding principal amount of the obligations secured by such thereby does not exceed (as to Holdings and all Subsidiaries) $5,500,000 at any one time;
(q) [Reserved];
(r) Liens in favor of any First Lien Loan Party securing Indebtedness permitted hereunder;
(other than Indebtedness as defined s) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods in clause the ordinary course of business;
(ft) banker’s Liens, rights of the definition thereof which has not been assumed by Infinity setoff and similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or any more accounts of its Subsidiaries Holdings 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, ;
(u) deposits made 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 outstandingsecure liability for premiums to an insurance carrier; and
(ov) 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 statutory Canadian Liens permitted under this paragraph shall not be spread to cover any additional Indebtedness or Property (other than a substitution Liens for taxes) arising in the ordinary course of like Property business, but only if payment of the obligations secured thereby is not yet due or improvements is being contested in good faith by appropriate proceedings and adequate reserves with respect thereto are maintained on such Property the books of the applicable Canadian Subsidiary or Canadian Subsidiaries of Holdings, as the case may be, in conformity with GAAP or other Property of equivalent value)applicable accounting standards.
Appears in 1 contract
Limitation on Liens. Infinity will notNo Company shall, and will not permit any of its Material Subsidiaries todirectly or ------------------- indirectly, create, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such their respective Property, whether now owned or hereafter acquired; provided, that or sell any such Property subject to an understanding or agreement, contingent or otherwise, to repurchase such Property (including the foregoing restrictions shall not apply to:sale of accounts receivable with recourse to any Company) or assign any right to receive income, except for the following, which are herein collectively referred to as "Permitted Liens": ---------------
(a) Liens in existence on the Closing Date and identified in Schedule 9.07, which Liens are reasonably acceptable to the Agents; -------------
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Companies, in accordance with GAAP;
(bc) Liens imposed by law which were incurred in the ordinary course of business, such as carriers', warehousemen's, landlords' and mechanics', materialmen's, repairmen's, architects' or Liens and other like similar Liens arising in the ordinary course of business business, in each case for sums the payment of which are is not overdue for a period of more than 30 days or which are being contested in good faith and required by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VISection 9.03;
(d) pledges or deposits under worker's workers' compensation, unemployment insurance and other social security legislationlegislation or the deposits securing the liability to insurance carriers;
(e) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) encumbrances typically found upon Real Property used for mining purposes in the applicable jurisdiction in which the applicable Real Property is located (e.g., surface rights agreements, wheelage agreements and reconveyance agreements), easements, rights-of-way, restrictions and other similar encumbrances or minor defects or irregularities in title incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of such Real Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the Real Property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Company on or with respect to such Real Property;
(g) Liens on upon tangible personal Property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity acquired after the Closing Date by Borrower 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its SubsidiariesSubsidiary, each of which Liens either (A) existed on such Property before the time of its acquisition and was not created in anticipation thereof thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to financefinance or refinance, refinance or refund, all or a part of the cost (including the cost of construction) of such Property or improvements thereon; provided, however, that -------- -------
(1) no such Lien shall extend to or cover any Property of Infinity or such Subsidiary any Company other than the respective Property so acquired and improvements thereon, and (2) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the fair market value of such Property at the time it was acquired;
(h) Liens existing on any Property of any Person at the time such Person becomes a Subsidiary or is merged or consolidated with or into a Subsidiary and, in each case, not created in contemplation of or in connection with such event; provided, however, that such Liens do not ------------------- extend to any other Property of any Company;
(i) mortgages on Property Liens not otherwise permitted hereunder securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision obligations of any statuteCompany at any time not exceeding in the aggregate $10.0 million;
(j) Liens securing Indebtedness owed obligations under Swap Contracts with any lender or any Affiliate of a lender under the Senior Credit Facility to Infinity or the extent such Swap Contracts relates to any Wholly Owned Subsidiary of Infinitythe obligations under the Senior Credit Facility;
(k) Liens consisting of judgment or judicial attachment Liens (iincluding prejudgment attachment) upon in existence less than 45 days after the receivables and inventory entry thereof or the enforcement of Infinity which is effectively stayed or any payment of its Subsidiaries which is covered in full (subject to secure Indebtedness resulting from financings of such receivables and inventory a customary deductible) by insurance or which do not otherwise result in an aggregate amount not greater than $400,000,000 less the aggregate amount Event 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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(mDefault under Section 10(h);
(n1) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum securing obligations in respect 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 Capital Leases solely on 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 subject 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 such Property or other Property of equivalent value).Capital Leases;
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Princess Beverly Coal Holding Co Inc)
Limitation on Liens. Infinity will not, and will not permit Neither Borrower nor any of its Material Subsidiaries to, shall create, incur, assume or suffer to exist exist, any Lien upon any of its Property, properties or enter into any Sale/Leaseback with respect to any such Propertyassets, whether now owned or hereafter acquired; provided, that other than the foregoing restrictions shall not apply to:following ("Permitted Liens"):
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedcreated pursuant to the Loan Documents;
(b) Any Lien existing on the Closing Date and set forth in Schedule 7.01 securing Indebtedness outstanding on such date which is permitted by Section 7.02(b);
(c) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty, or to the extent that nonpayment thereof is permitted under Section 6.05; provided, however, that no notice of lien has been filed or recorded under the Code;
(d) Statutory Liens of carriers', landlords, warehousemen's, mechanics', materialmen's, repairmen's, architects' repairmen or other like similar 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 proceedingsproceedings which have the effect of preventing the forfeiture or sale of the property subject thereto;
(ce) Liens securing judgments or to perfect an appeal (other than any Lien imposed by ERISA) consisting of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, compensation unemployment insurance and other social security legislation;
(ef) pledges or deposits Deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like similar nature incurred in the ordinary course of business and business; provided, that all such Liens in the aggregate, even if enforced, could not involving the borrowing of moneybe reasonably expected to have a Material Adverse Effect;
(fg) easementsEasements, rights-of-way, restrictions and other similar encumbrances existing on the date hereof or hereafter incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity 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 Borrower 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 transactionits Subsidiaries;
(h) Liens upon real and/or personal Purchase money security interests on any property acquired (or held by purchase, construction, foreclosure, deed Borrower or its Subsidiaries in lieu the ordinary course of foreclosure or otherwise) by Infinity 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 business securing Indebtedness representing, incurred 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred assumed for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to acquiring such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 which 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 is permitted under Section 5.5(n) Indebtedness"7.02(b)) 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, thatthat (i) any such Lien attaches to such property concurrently with or within twenty (20) days after the acquisition thereof, except (ii) such Lien attaches solely to the extent otherwise permitted by this Section 5.5 property so acquired in such transaction, and (including Section 5.5(n)), iii) the principal amount of the debt secured thereby does not exceed 80% of the cost of such Property;
(i) Liens securing Capital Lease Obligations 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 such Property or other Property of equivalent valueSection 7.02(b).
Appears in 1 contract
Sources: Credit Agreement (Credentials Services International Inc)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Recourse Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertytheir properties, assets (including shares of stock) or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges or claims which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) Liens of landlords, laborers and employees arising by operation of law and suppliers’, carriers'’, warehousemen'swarehousemens’, mechanics'’, materialmen'smaterialmens’, repairmen's, architects' repairmens’ or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 45 days or or, if more than 45 days overdue, 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislation; provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the Security Documents or any of the Unpledged International Property;
(ed) pledges or deposits to secure the performance of tenders, bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, stay, surety and appeal or bonds, performance bonds bonds, performance and contractual completion guarantees and other obligations of a like nature incurred in the ordinary course of business (including those to secure health, safety and not involving environmental obligations); provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the borrowing Security Documents or any of moneythe Unpledged International Property;
(fe) easements, reservations, licenses, rights-of-way, zoning restrictions and covenants, conditions and restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, or title defects or other restrictions on as to the use of Property real properties or minor imperfections in title thereto and Liens under leases and subleases incidental to the conduct of the business of such Person or to the ownership of its properties which, in the aggregate, are not material in amount, and which do not materially detract from the use of the property subject thereto or materially interfere in any material respects with the ordinary conduct of the business of Infinity 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity Company 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 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;
(if) mortgages on Property securing indebtedness Liens in favor of the United States of America for amounts paid by the Company or any state thereof of its Subsidiaries as progress payments under government contracts entered into by them; provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any department, agency or instrumentality or political subdivision of the United States Unpledged International Property;
(g) Liens existing on the date of America this Agreement as set forth in Schedule 11.3(g);
(h) Liens under the Security Documents (including, without limitation, Liens which secure Designated Eligible Obligations as provided for in the Intercreditor Agreement) or any state thereof, incurred for the purpose of financing other Lien securing all or any part portion of the purchase price Payment Obligations, the Term Loan Payment Obligations or any refinancings thereof permitted by Section 11.2(a) or 11.2(s), or Designated Eligible Obligations or Term Loan Eligible Obligations, in each case, as provided for in the cost Intercreditor Agreement or other applicable intercreditor agreement contemplated hereunder as a condition to the incurrence of construction such Indebtedness or, in the case of any Refinancing Notes (as defined in the Property subject Term Loan Agreement), as provided for in the Intercreditor Agreement or other intercreditor agreement between the Administrative Agent and the trustee for the Refinancing Notes, in form and substance reasonably satisfactory to the Administrative Agent, providing for the Liens securing such mortgages Refinancing Notes to be on a pari passu basis with the Liens securing the Term Loans;
(including without limitation such debt secured by such mortgages i) attachment, judgment, order or other similar Liens arising in connection with pollution controlcourt or arbitration proceedings; provided, industrial revenue however, that the same are being contested in good faith and any appropriate legal proceedings which may have been duly initiated for the review of such judgment or similar financings) Lien shall not have been finally terminated or incurred to secure progressthe period within which such proceedings may be initiated shall not have expired and, advance or other payments pursuant to any contract or provision in each case, shall not otherwise constitute an Event of any statuteDefault under Section 12.1(k);
(j) other Liens securing incidental to the conduct of the business of the Company and its Subsidiaries or the ownership of any of their assets not incurred in connection with Indebtedness owed to Infinity or to Contingent Obligations, which Liens do not in any Wholly Owned Subsidiary case materially detract from the value of Infinitythe property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries; provided, however, that no such Lien shall encumber any Collateral under any Security Document or any of the Unpledged International Property;
(k) Liens securing any Indebtedness permitted by Section 11.2(d) or any Liens replacing such permitted Liens; provided, however, that (i) upon no such Lien shall encumber any asset of the receivables Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property and inventory (ii) any such Lien which secures reimbursement obligations under letters of Infinity credit not issued under this Agreement shall be limited to (A) the assets acquired or shipped with the support of such letter of credit and (B) any assets of a Foreign Subsidiary which are in the care, custody or control of such issuer of such letter of credit in the ordinary course of business;
(l) Liens securing any Indebtedness permitted by Section 11.2(g), Section 11.2(h) or obligations of any Foreign Subsidiary or a foreign branch of any Domestic Subsidiary principally doing business outside of the United States in respect of treasury, depository, overdraft and other cash management arrangements maintained with any Lender, any Term Loan Lender or any Affiliate of a Lender or a Term Loan Lender or any other Person reasonably acceptable to the Administrative Agent or any Liens replacing such permitted Liens; provided, however, that no such Lien shall encumber any asset of the Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property;
(m) Liens in the nature of counterpart deposits or pledges of cash deposits of the Company 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 Foreign Subsidiaries of the aggregate amount Company or a foreign branch of a Domestic Subsidiary principally doing business outside of the United States, which Indebtedness that is secured permitted pursuant to clause Section 11.2(k)); provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any of the Unpledged International Property;
(n) Liens in favor of securities intermediaries, commodity intermediaries, brokers and dealers arising in connection with the acquisition or disposition of investments of the type permitted by Section 11.8; provided, however, that such Liens (i) attach only to such investments and (ii) belowsecure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such investments and not any obligation in connection with margin financing; and provided, further, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except Liens attach only to the extent property of breaches of representations and warranties of Infinity the Company or its Subsidiary, as the case may be, for whose account any such obligations have been incurred;
(o) Liens granted by the Company or any of its Subsidiaries in connection with (including the interest of a lessor under a Capital Lease and Liens to which any property is subject at the time, on or after the date hereof, of the Company’s or such financings and other recourse customary in connection with "off-balance sheet" financingsSubsidiary’s acquisition thereof) securing Indebtedness permitted under Section 11.2(l) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity limited, in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior each case, to the Closing Date;
property the acquisition, development, purchase, lease, repair, addition or improvement of which is financed or reimbursed with the proceeds of such Indebtedness or subject to such Capital Lease (m) any Sale/Leaseback or proceeds thereof or additional property in the nature of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(mimprovements thereto);
(np) additional Liens upon real and/or personal property, and additional Sale/Leasebacksin the nature of counterpart deposits or pledges of cash deposits of the Company or any of its Subsidiaries to secure Indebtedness permitted pursuant to Section 11.2(m); provided, however, that the sum amount of any such deposit does not exceed the amount of the Indebtedness it secures;
(iq) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(b), provided that the aggregate outstanding principal amount of the obligations Indebtedness permitted to be secured by such Liens permitted under this Section 11.3(q) shall not exceed $555,000,000, plus, if the amount of any Indebtedness outstanding under Section 11.2(b) includes any Permitted Refinancing of Indebtedness thereunder, the aggregate of amounts described in subclauses (other than Indebtedness as defined in 2) and (3) of clause (fb) of the definition thereof of “Permitted Refinancing” in respect of such Permitted Refinancing;
(r) Liens on any assets or property of a Foreign Subsidiary which has secure any non-debt obligations of such Foreign Subsidiary;
(s) Liens (A) on the assets or property (including shares of Capital Stock) of a Subsidiary of the Company (including, upon and following the consummation of the Colomer Acquisition, the Acquired Business) existing (or required pursuant to agreements existing) at the time such Subsidiary became a Subsidiary of the Company or (B) on any property at the time the Company or a Subsidiary of the Company acquired such property (including any acquisition by means of a merger or consolidation with or into the Company or any Subsidiary of the Company) in each case not been assumed incurred or created in connection with or in anticipation of such Subsidiary becoming a Subsidiary of the Company or such acquisition; provided, however, that such Liens do not extend to or cover any other property or assets of the Company or any of its Recourse Subsidiaries other than the proceeds of the assets or property described in clause (A) or (B) above and any improvements thereto or as otherwise permitted under this Section 11.3;
(t) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(u) Liens that are contractual rights of set-off and other Liens arising as a matter of law (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any Recourse Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company and its Recourse Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Company, the Company or any Recourse Subsidiary in the ordinary course of business;
(v) Liens on inventory or equipment of the Company or any Subsidiary granted in the ordinary course of business to the Company’s client or customer at which such inventory or equipment is located;
(w) Liens arising from precautionary UCC financing statement filings (or similar filings under other applicable law) regarding leases entered into by Infinity the Company or any Subsidiary in the ordinary course of business;
(x) Liens on Receivables and Related Assets incurred in connection with a Receivables Facility (other than the Capital Stock of any Receivables Subsidiary);
(y) leases, licenses, subleases and sublicenses of property granted by the Company and its Subsidiaries in the ordinary conduct of the business of the Company or any of its Subsidiaries and where which do not secure any Indebtedness;
(z) Liens securing Indebtedness in respect of Permitted Refinancings permitted under Section 11.2 to the extent such Liens are permitted under clause (g) of the definition of “Permitted Refinancing”;
(aa) Liens granted in favor of issuers of documentary or trade letters of credit for the account of the Company or such Subsidiary or bankers’ acceptances, which Liens secure the reimbursement obligations of the Company or such Subsidiary on account of such letters of credit or bankers’ acceptances; provided that each such Lien relates is limited to Property (i) the assets acquired by Infinity 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;
(bb) Liens on (i) the net proceeds of the incurrence of Indebtedness to secure any redemption, repurchase or defeasance obligations in respect of such Indebtedness or any other Indebtedness being refinanced with the proceeds of its Subsidiaries such Indebtedness and (ii) any additional cash to secure such redemption, repurchase or defeasance obligations in satisfactionan amount which, in whole when added to such net proceeds, is necessary to effect such redemption, repurchase or in part, of indebtedness to Infinity or any of its Subsidiaries, defeasance;
(cc) deposits 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; andsecure liability to insurance carriers;
(odd) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 11.2; provided that such Liens do not extend to any extension, renewal assets other than those assets that are the subject of such repurchase agreement;
(ee) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(o) or replacement of the foregoingSection 11.2(p); provided, however, that, except after giving effect to the extent otherwise permitted by this Section 5.5 such Liens (including Section 5.5(n)and any Permitted Acquisition consummated in connection therewith, whether prior to or concurrently with such incurrence of such Liens), as of the last day of the most recent four consecutive fiscal quarters with respect to which financial statements shall have been delivered pursuant to Section 10.1, (i) the First Lien Secured Leverage Ratio of the Company and its Subsidiaries shall be less than or equal to 4.25 to 1.00 on a pro forma basis and (ii) the Company’s Senior Secured Leverage Ratio, calculated on a pro forma basis, is less than 5.5 to 1.0;
(ff) Liens permitted under this paragraph shall not be spread to cover any additional Indebtedness or Property on Receivables and Related Assets (other than a substitution Capital Stock of like Property or improvements on such Property or any Subsidiary) in connection with the factoring arrangements permitted by Section 11.2(r) above; and (gg) additional Liens securing obligations which, together with all other Property obligations secured by Liens (excluding Liens permitted by clauses (a) through (ee) above) at the time of equivalent value)determination do not exceed $15,000,000.
Appears in 1 contract
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of such Loan Party, in conformity with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, builders’, operators’, materialmen's’s, repairmen's’s, architects' possessory, joint venturers’ or landlord’s Liens, or other like similar 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 proceedingsproceedings or which have been bonded over or otherwise adequately secured against;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislation;
(ed) pledges deposits or deposits bonds to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(e) Permitted Commodities Liens;
(f) Permitted Cash Management Liens;
(g) Permitted Senior Facility Liens;
(h) (i) easements, rights-of-way, restrictions and other similar title exceptions and encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, secure obligations that do not constitute Indebtedness, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity the Loan Parties, and its Subsidiaries taken as a whole;
(gii) Liens on Property the reservation in original grants from any Governmental Authority of any Subsidiary of Infinity land or of interest therein and statutory exceptions and reservations from title which do not in any Person which is or was merged case materially interfere 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 ordinary conduct of the relevant transaction;
(h) Liens 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 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, all or a part business 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 thereonLoan Parties;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of Liens arising from precautionary Form UCC financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statutestatements;
(j) Liens securing Indebtedness owed created pursuant to Infinity or to any Wholly Owned Subsidiary of Infinitythe Security Documents;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000First Purchaser Liens;
(l) Sale/Leasebacks consummated prior netting and other offset rights granted by any Loan Party to the Closing Datecounterparties under Commodity Contracts and Financial Hedging Agreements on or with respect to payment and other obligations owed by such Loan Party to such counterparties;
(m) any Sale/Leaseback of assets of Infinity owned Liens in existence on the Closing Date that are listed, and listed the property subject thereto described, on Schedule 5.5(m)8.3;
(n) additional Liens upon real and/or personal propertyon cash and short-term investments deposited as collateral by a Loan Party under any Commodity Contract or Financial Hedging Agreement with the counterparty (or counterparties) thereto;
(o) Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.1(i) or securing appeal or other surety bonds related to such judgments;
(p) Liens on a Loan Party’s interest in a Deposit Account, and additional Sale/LeasebacksCommodity Account or a Securities Account that is subject to an Account Control Agreement; providedprovided that, such Liens are specifically permitted by such Account Control Agreement or arise by operation of law; and
(q) Liens securing Indebtedness of the Loan Parties permitted by Section 8.2(f) incurred to finance the acquisition of fixed or capital assets, 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) shall be created substantially simultaneously with the acquisition of the definition thereof which has not been assumed by Infinity such fixed or any of its Subsidiaries and where the Lien relates to Property acquired by Infinity or any of its Subsidiaries in satisfactioncapital assets, 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 Liens do not exceed $125,000,000 at any one time outstanding; and
(o) encumber 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 (property other than a substitution of like Property or improvements on the property financed by such Property or other Property of equivalent value)Indebtedness.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and nor will not it permit any of its Material Subsidiaries Principal Subsidiary to, create, incur, assume or suffer to exist any Lien upon in, of or on the property of the Company or any of its PropertyPrincipal Subsidiaries, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies on its property if the same shall not yet due and payable at the time be delinquent or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers'thereafter can be paid without penalty, warehousemen's, mechanics', materialmen's, repairmen's, architects' 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;
(b) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 60 days past due or which are being contested in good faith and by appropriate proceedings diligently conducted;
(c) Liens securing judgments arising out of pledges or to perfect an appeal of any order deposits under worker’s compensation laws, unemployment insurance, old age pensions, or decree but only to the extentother social security or retirement benefits, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIor similar legislation;
(d) pledges Lien incidental to the normal conduct of the business of the Company or deposits under worker's compensationany Principal Subsidiary or the ownership of its property or the conduct of the ordinary -22- Madison Gas and Electric Company course of its business, unemployment insurance including (i) zoning restrictions, easements, rights of way, reservations, restrictions on the use of real property and other social security legislation;
minor irregularities of title, (eii) pledges rights of lessees under leases, (iii) rights of collecting banks having rights of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Principal Subsidiary on deposit with or in the possession of such banks, (iv) Liens or deposits to secure the performance of statutory obligations, tenders, bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyprogress payments, appeal performance or return-of-money bonds, performance or other similar bonds and contractual and or other obligations of a like similar nature incurred in the ordinary course of business business, and (v) Liens required by any contract or statute in order to permit the Company or a Principal Subsidiary to perform any contract or subcontract made by it with or pursuant to the requirements of a governmental entity, in each case which are not involving incurred in connection with the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course obtaining of business and encumbrances consisting advances or credit or the payment of zoning restrictions, easements, licenses, restrictions on the use deferred purchase price of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, property and which do not interfere in any material respects with the ordinary conduct aggregate impair the use of property in the operation of the business of Infinity the Company and its Principal Subsidiaries taken as a whole;
(ge) 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 property existing at the time of the relevant transaction;
(h) acquisition thereof or Liens upon real and/or personal affecting 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 a Person existing at the time of its acquisition and was not created in anticipation thereof it becomes a Principal Subsidiary or (B) was created solely for at the purpose of securing Indebtedness representing, time it is merged into or incurred to finance, refinance or refund, all consolidated with the Company or a part Principal Subsidiary; provided that, in either case, such Liens were not granted in contemplation of such acquisition or in contemplation of the cost (including the cost of construction) of transaction pursuant to which such Property or improvements thereonPerson became a Principal Subsidiary; providedand provided further that in either case, that no such Lien shall Liens do not extend to or cover any Property property of Infinity the Company or such Subsidiary of any of its Principal Subsidiaries other than the respective Property so property that secured the acquired and improvements thereonIndebtedness prior to the time such Indebtedness became Indebtedness of the Company or a Principal Subsidiary;
(if) mortgages Liens on Property property securing indebtedness in favor of Indebtedness incurred prior to, at the United States of America time of, or any state within 12 months after the acquisition thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price thereof, provided that such Liens do not extend to or cover any other property of the Company or any Principal Subsidiary and the Indebtedness secured thereby was incurred to pay, and does not exceed, the purchase price thereof;
(g) Liens on any improvements to property securing Indebtedness incurred to provide funds for all or part of the cost of such improvements in a principal amount not exceeding the cost of acquisition or construction of such improvements and incurred within 12 months after completion of such improvements or construction, provided that such Liens do not extend to or cover any property of the Property subject Company or any Principal Subsidiary other than such improvements;
(h) Liens to such mortgages (including without limitation such debt secured government entities granted to secure pollution control or industrial revenue bond financings, which Liens in each financing transaction cover only the property the acquisition of which, or the construction of which, was financed by such mortgages in connection with pollution controlfinancing, industrial revenue and property related thereto;
(i) any Lien incurred or similar financings) or incurred deposits to secure progressthe performance of surety bonds incurred in the ordinary course of business consistent with past practice, advance provided that -23- Madison Gas and Electric Company such Liens shall cover only the Company’s or other payments pursuant its Principal Subsidiary interests in and relating to any the contract or provision of any statuteunderlying the transaction for which such surety bonds were issued;
(j) Liens securing Indebtedness owed on cash or cash equivalents created or existing to Infinity secure stay or to appeal bonds or otherwise resulting from any Wholly Owned Subsidiary litigation or legal proceeding which are being contested in good faith by appropriate action promptly initiated and diligently conducted, including the Lien of Infinityany judgment; provided that the aggregate amount secured by all such Liens does not exceed $45,000,000;
(k) Liens securing any extension, renewal, replacement or refinancing of Indebtedness secured by any Lien referred to in the foregoing clauses (e), (f), (g), (h), and (l); provided that
(i) upon such new Lien shall be limited to all or part of the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of same property that secured the original Lien (plus improvements on 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 property) and
(ii) below; provided, that the terms amount secured by such Lien at such time is not increased to any amount greater than the amount outstanding at the time of such Indebtedness do not provide for any recourse to Infinity renewal, replacement or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000refinancing;
(l) Sale/Leasebacks consummated prior agreements for and obligations relating to the Closing Datejoint or common use of property owned by the Company or any Principal Subsidiary in common or jointly with one or more other parties;
(m) Liens on assets held by entities which are required to be included in the Company’s or any Sale/Leaseback Principal Subsidiary’s consolidated financial statements solely as a result of assets the application of Infinity owned on the Closing Date and listed on Schedule 5.5(m)FASB Interpretation No. 46R;
(n) additional Liens upon real and/or personal property, existing on the date hereof and additional Sale/Leasebacks; provided, that the sum of (i) the aggregate principal amount of the obligations secured by such Liens described in Schedule 5.15 (other than Indebtedness as defined Liens arising under the Mortgage, which are described and covered in clause paragraph (fp) of this Section 10.4);
(o) Permissible Encumbrances;
(p) Liens arising under 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 outstandingMortgage; and
(oq) any extension, renewal or replacement Liens securing Indebtedness of the foregoing; providedCompany or any Subsidiary permitted (or, howeverin the case of the Notes and any Other Notes, that, except to the extent otherwise permitted required) 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 such Property or other Property of equivalent value)10.6.
Appears in 1 contract
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, the properties or enter into any Sale/Leaseback with respect to any such Property, whether assets which it now owned owns or hereafter acquired; providedacquires, that except the foregoing restrictions shall not apply to:following (“Permitted Liens”):
(a) Liens securing (i) on a pari passu basis, both (x) the Obligations and (y) the Liabilities of any Restricted Person arising under the 364-Day Credit Agreement, and (ii) if required, any related interest hedge rate agreements;
(b) Liens securing Indebtedness of Plains Marketing under the Contango Credit Agreement at any one time outstanding not in excess of $300,000,000 on (i) Petroleum Products subject to Cash and Carry Purchases financed pursuant to the Contango Credit Agreement, (ii) hedging contracts covering such Petroleum Products, (iii) contracts for the purchase or sale of such Petroleum Products and accounts receivable arising therefrom, and (iv) all proceeds of the foregoing;
(c) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 is being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal , if necessary, for which adequate reserves are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting Restricted Person in an Event of Default under paragraph (h) of Article VIaccordance with GAAP;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(e) pledges 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, if necessary, by appropriate proceedings, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(f) Liens on cash and Cash Equivalents under or with respect to accounts with brokers or counterparties with respect to hedging contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing only hedging contracts;
(g) deposits of cash or securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fh) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property in respect 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 transactionoperating leases;
(hj) Liens upon real and/or personal any property or assets directly or indirectly acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed); and improvements thereon;
any extension, renewal, refinancing, refunding or replacement (i) mortgages on Property securing indebtedness or successive extensions, renewals, refinancings, refundings or replacements), in favor whole or part, of the United States of America foregoing, provided, however, that such Liens shall not cover or secure any state thereof additional Indebtedness, obligations, property or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityasset;
(k) Liens (i) upon the receivables and inventory of Infinity rights reserved to or vested in 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 governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such Indebtedness do not provide for any recourse right, power, franchise, grant, license or permit or to Infinity condemn or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity acquire by eminent domain or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000similar process;
(l) Sale/Leasebacks consummated prior 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 Dateproperties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws;
(m) rights reserved to the grantors of any Sale/Leaseback properties of assets any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of Infinity owned on the Closing Date and listed on Schedule 5.5(m)any rights-of-way agreements, contracts or other agreements therewith;
(n) additional inchoate Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.1;
(io) the Liens securing obligations in an aggregate principal amount not to exceed at any time outstanding 10% of US Borrower’s Consolidated Tangible Net Worth; and
(p) Liens related to the obligations secured by such Liens extension, renewal, refinancing, refunding or replacement (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 successive extensions, renewals, refinancings, refundings or any of its Subsidiaries in satisfactionreplacements), in whole or in part, of indebtedness to Infinity or any of its Subsidiariesclauses (a), in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")b) 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 foregoingthis Section 7.2; provided, however, that, except to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), the that such Liens permitted under this paragraph shall not be spread to cover or secure any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Indebtedness.
Appears in 1 contract
Limitation on Liens. Infinity will The Borrower shall not, and will shall not permit any of its Material Subsidiaries other Restricted Person to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges (i) not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 -57- accordance with GAAP or (ii) which could not, individually or in the aggregate be reasonably expected to have a Material Adverse Effect;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including 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 (i) which are not more than sixty (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 or (ii) with respect to which failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) Liens on deposits of cash or securities in favor of the seller of any property intended to be acquired in an Investment permitted pursuant to Section 7.06 to be applied against the purchase price for such Investment;
(g) Liens arising pursuant to customary provisions in joint venture agreements or arrangements, limited liability company agreements and other similar agreements relating solely to obligations of the Person granting such Liens to secure obligations under such joint venture, limited liability company or other similar agreement;
(h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any Subsidiary right, power, franchise, grant, license or permit, or by any provision of Infinity law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(j) rights reserved to or vested by Law in any Governmental Authority to control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein under any and all Laws;
(k) 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;
(l) inchoate Liens in respect of pending litigation or with respect to a judgment that has not resulted in an Event of Default under Section 8.01;
(m) statutory Liens in respect of payables;
(n) any Lien securing Indebtedness permitted by Section 7.01(g) or other obligations of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, as the case may be, were (ii) such Lien shall not created in anticipation thereof apply to any other than to finance the purchase thereof and are not spread to cover any Property other than the Property covered at the time property of the relevant transactionBorrower or any Subsidiary, 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;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(jo) Liens securing Indebtedness owed to Infinity permitted by Sections 7.01(f), or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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(m7.01(h);
(np) additional Liens upon real and/or personal property, on cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(q) Liens in respect of operating leases covering only the property subject thereto;
(r) Liens on Equity Interests of Unrestricted Persons (other than Liens on Equity Interests in ETP and additional Sale/Leasebacks; provided, that the sum Regency) and joint ventures securing Indebtedness or other obligations of such Unrestricted Person or joint venture;
(s) Liens securing (i) the aggregate Revolving Obligations in an original principal amount not to exceed $1,000,000,000, the Lender Hedging Obligations secured ratably thereunder and the Other Hedging Obligations, (ii) Existing Term Loan Obligations in an original principal amount not to exceed $1,400,000,000, (iii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the terms of the Indenture or the documentation governing the Senior Note Refinancing Indebtedness to be equally and ratably secured with the obligations secured under this Agreement, the Senior Note Obligations or Senior Note Refinancing Indebtedness, (iv) the Obligations and/or any Term Loan Refinancing Indebtedness and (v) obligations for other Indebtedness incurred pursuant to Section 7.01(m);
(t) Liens, (i) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into 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, Restricted Person in the ordinary course of business (any such Indebtednessbusiness, "Specified Section 5.5(n) Indebtedness")) and (ii) on assets being Disposed of by any Restricted Person pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the aggregate Sale/Leaseback Attributable Debt with Disposition of such assets, provided that such merger agreement, stock or asset purchase agreement or similar agreement in respect of the Disposition of such asset is permitted pursuant to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingthe terms of this Agreement; and
(ou) Liens incurred with respect to obligations that do not in the aggregate exceed $50,000,000 at any extension, renewal or replacement time outstanding. Notwithstanding any of the foregoing; provided, however, that, except foregoing to the extent otherwise contrary, other than as permitted by this Section 5.5 clause (s) above, no Liens of the kind set forth in clauses (a) through and including Section 5.5(n))(u) above shall be permitted on the Equity Interests of ETP, the Liens permitted under this paragraph shall not be spread to cover any additional Indebtedness ETP GP, ETP LLC, Regency, Regency GP or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Regency LLC.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments assessments, governmental charges or charges levies not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves (in the good faith judgment of the Company) with respect thereto are maintainedmaintained on the books of the Company in accordance with GAAP;
(b) carriers'statutory Liens of landlords and carrier's, vendor's, warehousemen's, mechanics'mechanic's, materialmen's, repairmen's, architects' or other like Liens arising in the ordinary course of business which if the obligations secured by such Liens are not overdue for a period of more than 30 60 days or which are being contested in good faith and (if necessary) by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits and Liens under bonds required in connection with worker's compensation, unemployment insurance and other social security legislationlegislation incurred in the ordinary course of business;
(ed) pledges Liens incurred or deposits to secure the performance of tenders, bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance and return-of-money bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholethe Company;
(f) Liens arising from judgments or decrees in circumstances not constituting an Event of Default under subsection 8.1(g);
(g) purchase money Liens securing obligations arising from the acquisition by the Company of property, provided that the principal amount of such obligations does not exceed the purchase price of such property;
(A) Liens in existence on the date of this Agreement, (B) 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 property existing at the time of the relevant transaction;
acquisition thereof (h) including Liens upon real and/or personal on any property acquired from a Person which is merged into the Company) and (by purchaseC) any extension, construction, foreclosure, deed renewal or refunding of any Lien referred to in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiaries, each of which Liens either clause (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, all or a part of the cost (including the cost of construction) of such Property or improvements thereon; provided, provided that no such Lien shall extend is extended to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;any
(i) mortgages on Property securing indebtedness Liens in favor respect of future demand charges or reservation charges sold by the United States of America Company or any state thereof or Subsidiary not exceeding $275,000,000 at any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteone time;
(j) Liens securing Indebtedness owed to Infinity in favor of the Company or to any Wholly Owned Subsidiary of InfinitySubsidiary;
(k) Liens (i) upon in favor of the receivables and inventory of Infinity Administrative Agent, any Issuing Lender 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) belowLenders under this Agreement; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;and
(l) 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 other Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, securing obligations such that the sum aggregate book value (net of (i) the aggregate principal amount of the obligations secured by such Liens (other than Indebtedness as defined in clause (fapplicable reserves) 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 assets securing such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall obligations does not exceed $125,000,000 at any one time outstanding; and
(o) any extension, renewal or replacement an amount equal to 10% 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 Consolidated Tangible Assets at such Property or other Property of equivalent value)time.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in the ordinary course of business which taxes that are not overdue for a period of more than 30 days thirty (30) days, Liens for taxes not required to be discharged pursuant to Section 5.5 or which Liens with respect to taxes, assessments or other governmental charges or levies that are being contested in good faith and by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of Holdings, the Borrower or the Restricted Subsidiaries, as the case may be, to the extent required by GAAP and Liens for property taxes on property that the Borrower or any of its Subsidiaries has determined to abandon (so long as such abandonment is not prohibited by this Agreement or any of the other Loan Documents), if the sole recourse for such tax is to such property;
(b) judgment Liens so long as the related judgment does not constitute an Event of Default;
(c) statutory or common law Liens securing judgments of landlords, banks and securities intermediaries (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) of the Code), in each case incurred in the ordinary course of business (i) for amounts not yet overdue or to perfect an appeal (ii) for amounts that are overdue and that (in the case of any order or decree but only to the extent, for an amount and such amounts overdue for a period not resulting in an Event excess of Default under paragraph (h30 days) of Article VIare being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;
(d) pledges restrictions, covenants, land use contracts, rent charges, building schemes, declarations of covenants, conditions and restrictions, servicing agreements in favor of any Governmental Authority, easements, rights-of-way, encroachments, servitudes and other minor defects or deposits under worker's irregularities in title or other similar rights in or with respect to real property (including open space and conservation easements, restrictions or similar agreements and rights of way and servitudes for railways, water, sewer, drainage, gas and oil pipelines, electricity, light, power, telephone, telegraph, internet or cable television services and utilities) granted to or reserved by other persons or properties, incurred in the ordinary course of business, which in the aggregate do not materially impair the use of or the operation of the business of such person or the property subject thereto;
(i) the right reserved to or vested in any Governmental Authority, by the terms of any Permit acquired by such Person or by any Law, to terminate any such Permit or to require annual or other payments as a condition to the continuance thereof, (ii) any security given to a public authority or other service provider or any other Governmental Authority when required by such utility or other Governmental Authority in connection with the operations of such person in the ordinary course of its business and (iii) the reservations, limitations, provisos and conditions, if any, expressed in any grants from any Governmental Authority or any similar authority;
(f) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation;
(e) pledges security, or deposits to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;
(g) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(h) any agreement to lease (including operating leases), option to lease, license, sub-lease or other right of occupancy assumed or entered by or on behalf of any NM Group Member in the ordinary course of its business or interests of lessors under operating leases and non-exclusive licensors under license agreements;
(i) Liens described on Schedule 6.3(i);
(j) Liens securing Indebtedness of the Borrower or any Restricted Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets in an aggregate amount not to exceed (as of the date any such Lien is incurred) the greater of (x) $15,000,000 and (y) 1.50% of Total Assets at any time outstanding, provided that such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness; provided further that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender
(k) Liens on property or other assets at the time the Borrower or a Restricted Subsidiary acquired the property or such other assets, including any acquisition by means of a merger, amalgamation or consolidation with or into the Borrower or any Restricted Subsidiary, securing obligations in an aggregate amount (together with any Indebtedness that is secured pursuant to clause (m)) not to exceed (as of the date any such Lien is incurred) $10,000,000; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, amalgamation, merger or consolidation; provided, further, that the Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary (other than after-acquired property that is (i) affixed or incorporated into the property covered by such Lien and (ii) the proceeds and products thereof);
(l) (i) Liens created pursuant to the Loan Documents, (ii) Liens securing any Replacement Loans, (iii) Liens securing any Incremental Commitments incurred in accordance with Section 2.24, (iv) Liens securing any Extended Term Loans or Extended Revolving Credit Commitments, (v) Liens securing any Refinancing Indebtedness with respect to the foregoing and (vi) Liens on cash collateral to Cash Collateralize the Letters of Credit or any other Obligation; provided that, in each case, such Liens are no greater than pari passu with the Liens under this Agreement and on the Collateral;
(m) Liens securing Indebtedness of any NM Group Member incurred pursuant to Section 6.2(e) in an aggregate amount (together with any obligations that are secured pursuant to clause (k)) not to exceed (as of the date any such Lien is incurred) $10,000,000; provided that, such Liens do not at any time encumber any Property other than the Property (including Capital Stock of any entity acquired and any of the Restricted Subsidiaries) acquired in such Acquisition;
(n) any right of set-off, refund or charge-back available to any bank or other financial institution or any other Lien arising in connection therewith or relating to purchase orders and other agreements entered into with customers of Holdings or any of its Subsidiaries in the ordinary course of business and Liens of a collection bank arising under Sections 4-208 and 4-210 of the UCC on the items in the course of collection;
(o) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by any Loan Party or any Subsidiary thereof in the ordinary course of its business and covering only the assets so leased, licensed or subleased;
(p) Liens arising solely from precautionary UCC financing statements or similar filings;
(q) any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
(r) other Liens on assets securing obligations in an aggregate amount not to exceed (as of the date any such Lien is incurred) the greater of (x) $15,000,000 and (y) 1.50% of Total Assets at any time outstanding;
(s) assignments of past due receivables solely for borrowed money), leases, statutory the purpose of collection;
(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) Liens securing obligations relating to secure surety, appeal any Indebtedness or performance bonds and contractual and other obligations of a like nature Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 6.2;
(v) Liens in favor of any Loan Party;
(w) [Reserved];
(x) [Reserved];
(y) Liens on Property subject to an agreement to Dispose of such Property permitted under Section 6.5;
(z) Liens on amounts deposited to secure Holdings’ and its Subsidiaries obligations in connection with the making or entering into of bids, tenders, or leases in the ordinary course of business and not involving in connection with the borrowing of money;
(faa) easementsLiens on amounts deposited to secure Holdings’ and its Subsidiaries reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary course of business;
(bb) licenses of content or non-exclusive licenses of patents, rights-of-waytrademarks, copyrights, or other intellectual property rights in the ordinary course of business;
(cc) Liens that are extensions, replacements or renewals of Liens permitted under this Section 6.3 (or successive extensions, renewals or replacements) to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the Liens so extended, renewed or replaced only encumber those assets that secured the original Indebtedness (plus improvements on such property);
(dd) restrictions and on transfers of securities imposed by applicable securities laws or agreement (other similar encumbrances incurred than Capital Stock pledged pursuant to the Security Documents);
(ee) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) in the ordinary course of business and encumbrances consisting pursuant to the terms of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto any lease and Liens under or rights reserved in any lease for rent or for compliance with the terms of such lease;
(ff) licenses (with respect to intellectual property and other property), leases or subleases granted to third parties to the extent permitted by the applicable terms of the Security Documents and subleases which, in the aggregate, are not material in amount, and which do not interfere interfering in any material respects respect with the ordinary conduct of the business of Infinity 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity Holdings or any of its Subsidiaries to secure Indebtedness or resulting from financings in a material diminution in the value of such receivables and inventory in an aggregate amount not greater than $400,000,000 less the aggregate amount collateral so licensed, leased or subleased;
(gg) Liens arising out of Indebtedness that is secured pursuant to clause (ii) below; providedconditional sale, that the terms title retention, consignment or similar arrangement for sale of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity goods entered into by Holdings or 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 ordinary course of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000business permitted by this Agreement;
(lhh) Sale/Leasebacks consummated prior Liens consisting of reasonable customary initial deposits and margin deposit and similar Liens attaching 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 (commodity trading accounts or 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, brokerage accounts maintained 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 outstandingfor speculative purposes; and
(oii) ground leases in respect of real property on which facilities owned or leased by the Borrower or 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 such Property or other Property of equivalent value)its Subsidiaries are located.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed securing the Obligations;
(b) Liens securing the obligations of Debtor under the Factoring Facility;
(c) Liens existing as of the date hereof, as approved by any Governmental Authority Secured Party and listed on Schedule III.
(d) Liens for taxes, assessments or charges taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of the relevant Loan Party in conformity with GAAP;
(be) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlords’ or other like Liens arising in the ordinary course of business which are secure amounts not overdue for a period of more than 30 60 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(df) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(eg) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fh) easements, restrictions (including zoning restrictions), rights-of-of- way, restrictions covenants, licenses, encroachments, protrusions and other similar encumbrances incurred and minor title defects affecting real property imposed by law or arising in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which that do not secure any monetary obligations and do not materially interfere in any material respects with the ordinary conduct of the business of Infinity 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 thereofthe Debtor; 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 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 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, 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;and
(i) mortgages on Property securing indebtedness in favor any interest or title of a lessor, sublessor, licensor or sublicensor under any lease, sublease, license or sublicense entered into by the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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, Debtor in the ordinary course of its business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and (ii) covering only 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 such Property or other Property of equivalent value)assets so leased.
Appears in 1 contract
Limitation on Liens. Infinity will The Company shall not, and will shall not permit any of its Material Subsidiaries toProject Company to directly or indirectly, create, incur, assume incur or suffer permit to exist any Lien upon of any nature whatsoever on any of its Propertyproperties (including, or enter into any Sale/Leaseback with respect to any such Propertywithout limitation, Capital Stock), whether now owned at the date of such Indenture or hereafter thereafter acquired; provided, that unless contemporaneously therewith or prior thereto the foregoing restrictions shall not apply toNotes are equally and ratably secured other than:
(a) pledges or deposits made by such Person under workers' compensation, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for payment of Indebtedness) or leases to which such Person is a party, or deposits to secure statutory or regulatory obligations of such Person or deposits of cash or United States government bonds to secure surety, appeal or performance bonds 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;
(b) Liens imposed by any Governmental Authority for taxeslaw such as carriers', assessments or charges warehousemen's and mechanics' Liens, in each case, arising in the ordinary course of business and with respect to amounts not yet due or being contested in good faith by appropriate legal proceedings promptly instituted and payable diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be diligently prosecuting appeal or other proceedings for review;
(c) Liens for property taxes not yet subject to penalties for non-payment or which are being contested in good faith and by for which appropriate proceedings provision as shall be required in conformity with GAAP, if adequate reserves with respect thereto are maintainedany, shall have been made;
(bd) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' Liens in favor of issuers or other like Liens arising surety bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of business which are its business; provided, however, that such letters of credit may 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationconstitute Indebtedness;
(e) pledges minor survey exceptions, minor encumbrances, easements or deposits reservations of, or rights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to secure the performance use of bidsreal properties or liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness or other extensions of credit and 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 such Person;
(f) Liens securing Indebtedness Incurred to finance the construction or purchase of, trade contracts or repairs, improvements or additions to, property; provided, however, that the Lien may not extend to any other property owned by the Company or a Project Company and the Indebtedness secured by the Lien may not be issued more than 270 days after the later of the acquisitions, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien;
(g) Liens existing on the Issue Date;
(h) Liens on property or shares of stock of a Person at the time such Person becomes a Project Company, provided, however, that any such Lien may not extend to any other than for borrowed money)property owned by the Company or any Project Company;
(i) Liens on property at the time the Company or a Project Company acquires the property, leasesincluding any acquisitions by means of a merger or consolidation with or into the Company or a Project Company; provided, statutory obligations however, that such Liens are not incurred in connection with, or in contemplation of, such merger or consolidation; and provided, further, that the Lien may not extend to secure surety, appeal any other property owned by the Company or performance bonds and contractual and any Project Company;
(j) Liens securing Indebtedness or other obligations of a like nature Project Company owing to the Company or a Wholly Owned Subsidiary;
(k) Liens incurred by a Person other than the Company or a Project Company on assets that are the subject of a Capitalized Lease Obligation to which the Company or a Project Company is a party; provided, however, that any such Lien may not secure Indebtedness of the Company or Project Company (except by virtue of clause (viii) of the definition of "Indebtedness") and may not extend to any other property owned by the Company or any Project Company;
(l) Liens Incurred by a Project Company to secure Non-Recourse Debt Incurred pursuant to paragraphs (ix), (xi) or (xii) of Section 3.04(b), provided that such Liens (x) are required in order to obtain such financing, (y) are not materially more restrictive, taken as a whole, than Liens customarily accepted (or, in the absence of any industry custom, reasonably acceptable), in substantially non-recourse project financings and (z) apply only to the assets of the Person that has incurred such Non-Recourse Debt, the Capital Stock of such Person (or any other Person that, directly or indirectly, owns such Capital Stock as its sole assets) and the income and proceeds therefrom;
(m) Liens not in respect of Indebtedness consisting of the interest of the lessor under any lease Incurred in the ordinary course of business and not involving the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity 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 upon real and/or personal property acquired (otherwise prohibited 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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)this Indenture;
(n) additional Liens upon real and/or personal propertywhich constitute banker's liens, rights of set-off or similar rights and additional Sale/Leasebacks; providedremedies as to deposit accounts or other funds maintained with any bank or other financial institution, that whether arising by operation of law or pursuant to contract;
(o) Liens Incurred pursuant to 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 outstandingSecurity Agreement; and
(op) Liens to secure any refinancing, refunding, extension, renewal or replacement of the foregoing; provided(or successive refinancings, howeverrefundings, thatextensions, 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 such Property or other Property of equivalent value).renewals or
Appears in 1 contract
Limitation on Liens. Infinity will The Borrower shall not, and will shall not permit any of its Material Subsidiaries other Restricted Person to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including 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 sixty (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) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein 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 that 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 any Subsidiary of Infinity or existing on any property of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, 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;
(hii) Liens 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 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, 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 not apply to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor property of the United States of America Borrower or any state thereof Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or any departmentthe date such Person becomes a Subsidiary, agency or instrumentality or political subdivision 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 United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured amount permitted by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing DateSection 7.02(m);
(m) Liens securing Indebtedness permitted by Sections 7.01(f),7.01(g) or 7.01(h); provided that such Liens do not secure Indebtedness that together with (but without duplication) all Indebtedness secured by Liens permitted under Section 7.02(l) exceeds a principal amount at any Sale/Leaseback one time of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m)$35,000,000;
(n) additional Liens upon real on cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(o) Liens in respect of operating leases covering only the property subject thereto; and
(p) Liens securing (i) Revolving Obligations in an original principal amount not to exceed $300,000,000, the Lender Hedging Obligations secured ratably thereunder and the Other Hedging Obligations, (ii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the terms of the Indenture or the documentation governing the Senior Note Refinancing Indebtedness to be equally and ratably secured with the obligations under this Agreement, the Senior Note Obligations or Senior Note Refinancing Indebtedness, (iii) the Obligations and/or personal propertyany Term Loan Refinancing Indebtedness and (iv) obligations for other Indebtedness incurred pursuant to Section 7.01(m); provided that, and additional Sale/Leasebacks; providedin connection with any Indebtedness secured pursuant to this Section 7.02(p), that after giving pro forma effect to the sum incurrence of such Indebtedness, the ratio of (i) the aggregate principal amount of the obligations secured by Value on 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 date 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 outstanding principal amount of all obligations so secured on such date is not less than 2.0 to such Sale/Leasebacks shall not exceed $125,000,000 at 1.0. Notwithstanding any one time outstanding; and
of the foregoing to the contrary, no Liens of the kind set forth in clauses (a) through and including (o) any extension, renewal or replacement above shall be permitted on the Equity Interests of the foregoing; providedCompany, howeverSUG Holdco, thatETP, except ETP GP, ETP LLC, Regency, Regency GP or Regency LLC, other than those Liens created to secure (i) the Revolving Obligations, the Lender Hedging Obligations secured ratably thereunder and the Other Hedging Obligations, (ii) for so long as the Senior Note Obligations are required pursuant to the extent otherwise permitted terms of the Indenture to be equally and ratably secured with other obligations secured by this Section 5.5 (including Section 5.5(n))any of such Equity Interests, the Liens permitted under this paragraph shall not be spread Senior Note Obligations, (iii) the Obligations and/or any Term Loan Refinancing Indebtedness and (iv) obligations for other Indebtedness incurred pursuant to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent valueSection 7.01(m).
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)
Limitation on Liens. Infinity None of the MLP, the Borrower or any Subsidiary will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called "Permitted Liens"):
(a) Liens existing on the date of this Agreement that are listed in the Disclosure Schedule, and any renewals or extensions thereof; provided that the property covered thereby is not increased, the amount of the Indebtedness secured thereby is not increased and any renewal or extension of the obligations secured or benefitted thereby is permitted under this Agreement;
(b) Liens imposed by any Governmental Authority for taxesTaxes, assessments or charges not yet due and payable delinquent or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the books of the MLP, the Borrower or any Subsidiary in accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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 the MLP, the Borrower or any Subsidiary 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 the MLP, the Borrower or any Subsidiary in accordance with GAAP;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholethe MLP, the Borrower or any Subsidiary;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of the MLP, the Borrower or any Subsidiary or the use thereof or the rights and interests of Infinity the MLP, the Borrower or any Subsidiary therein, in any manner under any and all Laws;
(i) rights reserved to the grantors of any properties of the MLP, the Borrower or any Subsidiary, 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 First Purchaser Payables;
(l) Liens securing Indebtedness permitted by Section 7.01(e) or other obligations of any Person which that becomes a Subsidiary after the date hereof; provided that (i) such Lien is not created in contemplation of or was merged in connection with such acquisition or into Infinity such Person becoming a Subsidiary, (ii) such Lien shall not apply to any other property of the MLP, the Borrower or any Subsidiary thereof; provided, that and (iii) such Liens are Lien shall secure only those obligations which it secures on the date of such acquisition or were in existence at the time date such Person becomes or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereofSubsidiary, as the case may be, were not created in anticipation thereof other than and Indebtedness refinancing such obligations (but no increase 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state principal amount thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject except by an amount equal to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 amounts paid for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations accrued interest, breakage, premium, fees and warranties of Infinity or any of its Subsidiaries expenses in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Daterefinancing);
(m) any Sale/Leaseback of assets of Infinity owned Liens on the Closing Date and listed on Schedule 5.5(m)cash margin collateral or securities securing Hedging Contracts;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that in respect of operating leases covering only the sum property subject thereto;
(o) Liens on Equity Interests of Unrestricted Subsidiaries or Joint Ventures securing Indebtedness of such Unrestricted Subsidiary or Joint Venture;
(ip) 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 outstandingsecuring Obligations; and
(oq) any extension, renewal or replacement Liens in respect 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 such Property or other Property of equivalent value)Permitted Priority Debt.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges not yet overdue by more than 30 days or not yet payable 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 Borrower or such Subsidiary, as the case may be, in accordance with GAAP;
(b) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising by operation of law, in each case in the ordinary course of business in respect of obligations which are not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower or such Subsidiary, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(di) pledges or deposits under worker's in connection with workmen’s compensation, unemployment insurance and other social security legislationlegislation and/or securing liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;
(d) (i) easements, right-of-way, zoning, other land use regulations and similar restrictions and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which, in the aggregate do not materially detract from the value of the property subject thereto or do not interfere with or adversely affect in any material respect the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole and (ii) any exceptions set forth in any title policies with respect to Mortgaged Properties;
(e) pledges (i) Liens pursuant to the Loan Documents and (ii) subject to the Intercreditor Agreement, Liens pursuant to the Second Lien Security Documents (or any Second Priority Security Documents (as defined in the Intercreditor Agreement));
(f) Liens on assets of entities or Persons which become Restricted Subsidiaries of the Borrower after the date hereof; provided that such Liens exist at the time such entities or Persons become 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 which are Commercial L/Cs;
(h) Liens securing any Indebtedness permitted under subsection 8.2(j); provided that (i) such security interests and the Indebtedness secured thereby are incurred prior to or within 365 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing, repairing, replacing, leasing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Borrower or any Restricted Subsidiary (other than proceeds and products thereof);
(i) existing Liens described in Schedule 8.3 and renewals thereof; provided that no such Lien is spread to cover any additional property after the Closing Date other than proceeds and products thereof and that the amount secured thereby is not increased (except in accordance with subsection 8.3(z));
(j) Liens securing arrangements permitted by the proviso contained in subsection 8.10;
(k) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, licenses, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fl) easementsLiens securing Indebtedness owing to the Borrower or any Subsidiary Guarantor under subsection 8.2(b);
(m) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary or existing on any property or asset of any Person that becomes a Restricted Subsidiary after the Closing Date prior to the time such Person becomes a Restricted Subsidiary (including in connection with any acquisition permitted under subsection 8.7); provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary, rights-of-wayas the case may be, restrictions (ii) such Lien shall not apply to any other property or assets of the Borrower or any Restricted Subsidiary (other than proceeds or products thereof) and other similar encumbrances (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(n) Liens securing Indebtedness of the Borrower or any Restricted Subsidiary incurred pursuant to subsection 8.2(n);
(o) Liens securing any Permitted Refinancing permitted under subsection 8.2; provided that such security interests shall not apply to any property or assets that were not collateral for the Indebtedness being refinanced;
(p) Liens securing obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business and encumbrances consisting in an aggregate amount not to exceed $75,000,000 at any time;
(q) Liens securing judgments for the payment of zoning restrictions, easementsmoney not constituting an Event of Default under Section 9(h) so long as such Liens (to the extent covering Collateral) are junior to the Liens created pursuant to the Security Documents;
(r) leases, licenses, restrictions subleases or sublicenses granted to others in the ordinary course of business and not interfering in any material respect with the business of the Borrower or any of its Restricted Subsidiaries;
(s) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the use course of Property collection, and (ii) in favor of a banking or minor imperfections other financial institution arising as a matter of law or granted in title thereto the ordinary course of business and Liens under leases customary general terms and subleases whichconditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry; provided that, in the aggregatecase of this clause (ii), unless such Liens are not material non-consensual and arise by operation of law, in amount, and which do not interfere in no case shall any material respects with such Liens secure (either directly or indirectly) the ordinary conduct repayment of the business of Infinity and its Subsidiaries taken as a wholeany Indebtedness for borrowed money;
(gt) Liens (i) on Property cash advances in favor of the seller of any Subsidiary property to be acquired in an Investment permitted pursuant to subsections 8.7(c), 8.7(k), 8.7(r), 8.7(t) or 8.7(u) to be applied against the purchase price for such Investment, or (ii) consisting of Infinity or an agreement to dispose of any Person which is property in a disposition permitted under subsection 8.6, in each case, solely to the extent such Investment 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 thereofdisposition, as the case may be, were not created in anticipation thereof other than to finance would have been permitted on the purchase thereof and are not spread to cover any Property other than the Property covered at the time date of the relevant transactioncreation of such Lien;
(hu) purported Liens upon real and/or evidenced by the filing of precautionary Uniform Commercial Code financing statements relating solely to operating leases of personal property acquired (entered into by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity 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 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity or any of its Restricted 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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;
(v) any interest or title of a lessor, sublessor, licensee, sublicensee, licensor or sublicensor under any lease, sublease, license or sublicense arrangement (including software and other technology licenses) entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of its business and which could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect;
(w) Liens on Cash Collateral granted in favor of any such Lenders and/or the Issuing Lender created as a result of any requirement to Cash Collateralize pursuant to this Agreement;
(x) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement;
(y) Liens on cash or Cash Equivalents used to defease or to satisfy and discharge Indebtedness, "Specified Section 5.5(n) Indebtedness")) provided that such defeasance or satisfaction and (ii) the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingdischarge is permitted hereunder; and
(oz) any extension, renewal or replacement other Liens securing Indebtedness of the foregoingBorrower or any Restricted Subsidiary; providedprovided that at the time of incurrence of any such Lien, howeverthe Consolidated Senior Secured Net Leverage Ratio as of such date (determined on a pro forma basis, that, except after giving effect to the extent otherwise permitted by this Section 5.5 incurrence of any Indebtedness and such Lien (including Section 5.5(nbut excluding the proceeds of any such Indebtedness in the calculation of unrestricted cash and Cash Equivalents))) is less than or equal to 4.0 to 1.0; provided further that the Liens securing such Indebtedness are pari passu with, or junior to, the Liens permitted under this paragraph securing the Obligations, and such Liens shall not be spread subject to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)an intercreditor agreement reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries to, create, incur, assume incur or suffer to exist any Lien upon on any property or asset of its Property, the Company or enter into any Sale/Leaseback with respect to any such PropertySubsidiary, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies on the Company’s or a Subsidiary’s property if the same shall not yet due and payable at the time be delinquent by more than 30 days or which thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings if action and for which adequate reserves in accordance with respect thereto are maintainedGAAP shall have been set aside on the books of the Company or such Subsidiary;
(b) Liens imposed by law, such as carriers'’, warehousemen's, ’s and mechanics', materialmen's, repairmen's, architects' or ’ liens and other like Liens similar liens arising in the ordinary course of business which are secure payment of obligations not overdue for a period of more than 30 60 days past due or which are being contested in good faith and by appropriate proceedingsaction and for which adequate reserves in accordance with GAAP shall have been set aside on the books of the Company or such Subsidiary;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation and deposits securing judgments liability to insurance carriers under insurance or to perfect an appeal self-insurance arrangements in respect of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIsuch obligations;
(d) pledges zoning, land use and building restrictions, regulations and ordinances, easements, survey exceptions, minor encroachments by and on any real property, railroad trackage rights, sidings and spur tracks, leases (other than Capitalized Lease Obligations), subleases, licenses, special assessments, rights-of-way, covenants, conditions, restrictions and declarations on or deposits under worker's compensationwith respect to the use of any real property, unemployment insurance reservations, restrictions and leases of or with respect to oil, gas, mineral, riparian and water rights and water usage, servicing agreements, development agreements, site plan agreements and other social security legislationsimilar encumbrances incurred in the ordinary course of business and title defects or irregularities that are of a minor nature and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Company or any Subsidiary;
(e) Liens incurred in connection with any transfer of an interest in accounts or notes receivable or related assets as part of any Permitted Factoring, Qualified Receivables Transaction, Off-Balance Sheet Liability or a Supply Chain Finance Program permitted hereunder, provided that, in the case of Liens related to (x) Qualified Receivables Transactions (other than in respect of factoring or similar transactions) and (y) Off-Balance Sheet Liabilities with respect to any Sale and Leaseback Transaction or securitization, such Liens shall be permitted pursuant to this clause (e) solely to the extent they would be permitted by the last paragraph of this Section 10.4;
(f) Liens securing obligations permitted by Section 10.2(q) with respect to assets described in such Section and products and proceeds thereof, in each case, to the extent such Liens pursuant to this clause (f) would be permitted by the last paragraph of this Section 10.4;
(g) Liens that are contractual rights of set-off or similar rights (i) relating to the establishment of depository relations with banks and other financial institutions not given in connection with the issuance of Debt, (ii) relating to pooled deposits, sweep accounts, reserve accounts or similar accounts of the Company or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary, including, without limitation, with respect to credit card charge-backs and similar obligations, or (iii) relating to purchase orders and other agreements entered into with customers, suppliers or service providers of the Company or any Subsidiary in the ordinary course of business;
(h) Liens (i) arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course of business and not for speculative purposes, (iv) in respect of funds received by the Company or any Subsidiary as agent on behalf of third parties in accordance with a written agreement that imposes a duty upon the Company or one or more Subsidiaries to collect and remit those funds to such third parties, or (v) in favor of credit card companies pursuant to agreements therewith;
(i) any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Effective Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Company or any Subsidiary 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 amendments, modifications, extensions, refinancings, renewals and replacements thereof to the extent they do not increase the outstanding principal amount thereof;
(j) to the extent such transactions create a Lien thereunder, liens in favor of lessors securing Permitted Sale and Leaseback Transactions on the asset subject to such Permitted Sale and Leaseback Transactions, in each case, to the extent such Liens pursuant to this clause (j) would be permitted by the last paragraph of this Section 10.4;
(k) any Lien on any property or asset of the Company or any Subsidiary (including Liens relating to build-to-suit leases) existing, or applicable to committed obligations, or anticipated to exist in the future, on the Effective Date and set forth in Schedule 10.4, provided that (i) such Lien shall not apply to any other property or asset of the Company or any Subsidiary (other than after-acquired property that is affixed or incorporated into the property or asset covered by such Lien and proceeds and products thereof), and (ii) such Lien shall secure only those obligations which it secures (or is intended to secure) on the Effective Date and extensions, renewals and replacements thereof to the extent that they do not increase the outstanding principal amount thereof;
(l) Liens in favor of the Collateral Agent securing the Secured Obligations and subject to the Intercreditor Agreement,
(m) Liens in favor of the Bank Agent in property of Foreign Subsidiaries to secure the obligations permitted under Section 10.2 of Foreign Subsidiaries that are Bank Borrowers;
(n) Liens on up to $20,000,000 of cash and/or Cash Equivalent Investments securing obligations of the Company and Subsidiaries under Swap Contracts;
(o) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Company or any Subsidiary;
(p) deposits and other Liens to secure the performance of bids, trade contracts (other than for borrowed moneyDebt), leases (other than Capitalized Lease Obligations), statutory obligations, surety and appeal bonds, performance and return of money bonds, bids, leases, statutory obligations to secure suretygovernment contracts, appeal or performance bonds and contractual trade contracts, agreements with utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof), in each case to the extent such deposits and other Liens are incurred in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(q) non-consensual Liens securing judgments that do not constitute an Event of Default under Section 11(i);
(r) any interest or title of a ground lessor or any other lessor, sublessor or licensor under any ground leases or any other leases, subleases or licenses entered into by the Company or any Subsidiary in the ordinary course of business, and all Liens suffered or created by any such ground lessor or any other lessor, sublessor or licensor (or any predecessor in interest) with respect to any such interest or title in the real property which is subject thereof;
(s) Liens securing obligations in respect of letters of credit, bank guarantees, warehouse receipts or similar obligations permitted under this Agreement and incurred in the ordinary course of business or consistent with past practice or industry practices and not involving the borrowing supporting obligations in respect of Debt for borrowed money;
(ft) easementsLiens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(u) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Company or any Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Investment or Acquisition permitted hereunder;
(v) Liens with respect to property of any Subsidiary that is neither a Bank Borrower, a Foreign Guarantor or a Subsidiary Guarantor securing Debt of any such Subsidiary, which Debt is permitted under Section 10.2, in each case, to the extent such Liens pursuant to this clause (v) would be permitted by the last paragraph of this Section 10.4;
(w) Liens on any amounts held by a trustee or other escrow agent under any indenture or other debt agreement issued in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture or other debt agreement pursuant to customary discharge, redemption or defeasance provisions;
(x) Liens arising from precautionary UCC financing statements regarding operating leases or other obligations not constituting Debt;
(y) Liens on Equity Interests in joint ventures that are not Subsidiaries (i) securing obligations of such joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement;
(z) Liens on securities that are the subject of repurchase agreements constituting Investments permitted under Section 10.12;
(aa) leases or subleases, and licenses or sublicenses (including with respect to any fixtures, furnishings, equipment, vehicles or other personal property, or any intellectual property rights-of-way), restrictions and other similar encumbrances incurred granted to others in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere interfering in any material respects respect with the ordinary conduct of the business of Infinity the Company and its Subsidiaries Subsidiaries, taken as a whole;
(gbb) subordination, non-disturbance and/or attornment agreements with any ground lessor, lessor or any mortgagor of any of the foregoing, with respect to any ground lease or other lease or sublease entered into by the Company or any Subsidiary;
(cc) Liens securing insurance premium financing arrangements, provided that such Liens are limited to the applicable unearned insurance premiums;
(dd) Liens securing Debt (i) of the Company or any Subsidiary in favor of the Company or any Subsidiary Guarantor that is a Domestic Subsidiary, (ii) of any Foreign Subsidiary Borrower to any Foreign Guarantor in respect of such Foreign Subsidiary Borrower, (iii) of any Foreign Subsidiary that is a Foreign Guarantor to the Foreign Subsidiary Borrower in respect of which it is a Foreign Guarantor or to any other Foreign Subsidiary that is a Foreign Guarantor in respect of such Foreign Subsidiary Borrower and (iv) of any Subsidiary that is not a Subsidiary Guarantor or a Bank Borrower in favor of any other Subsidiary that is not a Subsidiary Guarantor or a Bank Borrower;
(ee) Liens on Property goods or inventory the purchase, shipment or storage price of any Subsidiary of Infinity or of any Person which is financed by a documentary letter of credit or was merged with bank guarantee issued or into Infinity created for the account of the Company or any Subsidiary thereofin the ordinary course of business; provided, that such Liens are or were in existence at Lien secures only the time such Person becomes or became a Subsidiary obligations of Infinity the Company or such Person merged with Subsidiaries in respect of such letter of credit, bank guarantee or into Infinity or any Subsidiary thereof, as banker’s acceptance to 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 transactionextent permitted under Section 10.2;
(hff) Liens upon real securing Debt under tax-favored or government-sponsored financing permitted under Section 10.2, provided that such Liens do not at any time encumber any Collateral unless approved by the Required Holders, in each case, to the extent such Liens pursuant to this clause (ff) would be permitted by the last paragraph of this Section 10.4;
(gg) in addition to Liens otherwise described in the foregoing clauses, Liens securing any other Debt and/or personal property acquired other obligations to the extent such Liens pursuant to this clause (gg) would be permitted by purchasethe last paragraph of this Section 10.4; and
(hh) any extensions, constructionrefinancings, foreclosurerenewals, deed in lieu substitutions or replacements of foreclosure or otherwise) by Infinity or for any of its Subsidiaries, each of which the foregoing Liens either (A) existed on such Property before to the time of its acquisition and was not created in anticipation thereof or (B) was created solely for extent that the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, all or a part aggregate principal amount of the cost (including Debt or other obligations or liabilities secured by the cost of construction) of such Property or improvements thereon; provided, that no such applicable Lien shall not be increased; provided that the Lien securing such Debt or other obligation or liability shall not extend to or cover any Property additional assets (it being understood that a Lien covering all assets of Infinity or a particular type, such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor as “all inventory”, may cover additional assets of the United States of America or relevant type). Any Debt described in this Section 10.4 is not in addition to Debt permitted under Section 10.2, and any state thereof or any department, agency or instrumentality or political subdivision Debt of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity Company or any of its Subsidiaries must be in compliance with Section 10.2. For purposes of determining compliance with this Section 10.4, (A) a Lien securing an item of Debt need not be permitted solely by reference to secure Indebtedness resulting from financings one category of permitted Liens (or any portion thereof), but may be permitted in part under any combination thereof and (B) in the event that a Lien securing any obligation (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens (or any portion thereof), the Company may, in its sole discretion, classify or divide such Lien securing such obligation (or any portion thereof) in any manner that complies with this Section 10.4 and will be entitled to only include the amount and type of such receivables Lien or such obligation secured by such Lien (or any portion thereof) in one of the above clauses and inventory in an aggregate amount not greater than $400,000,000 less the aggregate amount of Indebtedness that is secured such Lien securing such obligation (or portion thereof) will be treated as being incurred or existing pursuant to only such clause or clauses (ii) below; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except portion thereof). Any Lien permitted above on any property may extend to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior identifiable proceeds thereof. Notwithstanding anything herein to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on contrary, 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) Company will not permit the aggregate principal amount of the obligations secured by such Liens permitted pursuant to clauses (e) (only with respect to Qualified Receivables Transactions (other than Indebtedness as defined in clause factoring or similar transactions) and with respect to any Sale and Leaseback Transaction or securitization to the extent such Sale and Leaseback Transaction or such securitization constitutes an Off-Balance Sheet Liability), (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(j), of indebtedness to Infinity or any of its Subsidiaries(v), in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")ff) and (gg) of this Section 10.4 (and, in each case, any extensions, refinancings, renewals, substitutions or replacements thereof pursuant to clause (hh) of this Section 10.4) immediately after giving effect to the incurrence, creation or assumption of such Liens, together with the aggregate principal amount of any other Liens outstanding pursuant to such clauses, would not exceed the greater of (i) $185,000,000 or (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
15% of Consolidated Tangible Assets (o) any extension, renewal or replacement determined as of the foregoing; providedlast day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 7.1(a) or Section 7.1(b) (or, however, that, except prior to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n))delivery of any such financial statements, the Liens permitted under this paragraph shall not be spread last day of the last fiscal quarter included in the financial statements referred to cover any additional Indebtedness in Section 5.5) when incurred, created or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)assumed.
Appears in 1 contract
Sources: Second Amended and Restated Note Purchase and Private Shelf Agreement (Modine Manufacturing Co)
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Significant Subsidiaries to, incur, create, incur, assume or suffer permit to exist any Lien upon on the capital stock or similar Equity Interests of or other ownership interests in any Significant Subsidiary or any Lien on any of its Propertyother assets, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; providedowned, that without effectively providing concurrently therewith to equally and ratably secure the foregoing restrictions shall not apply to: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 imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's workmen’s compensation, unemployment insurance and other social security legislation;
(e) pledges laws, or deposits to secure the performance of bids, trade tenders, contracts (other than for the repayment of borrowed money), leases, statutory obligations to secure suretyobligations, surety or appeal bonds, or indemnity, performance bonds or other similar bonds, in the ordinary course of business for sums not yet due and contractual and payable beyond any applicable grace or cure period or the payment of which is not at the time required by Section 9.4;
(b) Liens (other obligations of a like nature 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 involving yet due and payable beyond any applicable grace or cure period or the borrowing payment of moneywhich 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 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 restrictions, survey exceptions and other similar encumbrances incurred as to real property which customarily exist on properties of corporations engaged in the ordinary course of business similar activities and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, similarly situated and which do not interfere in any material respects 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 Infinity the Company 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Significant 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity obligations, neither assumed by the Company or to any Wholly Owned Significant Subsidiary nor on account of Infinitywhich 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 (i) upon 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 receivables and inventory ordinary course 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000business;
(l) Sale/Leasebacks consummated prior any Lien constituting a renewal, extension or replacement of a Lien permitted under clause (e), (f) or (g) of this Section 10.3, but only if (1) at the time such 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 part of the property or asset that was subject to the Closing Date;
Lien so renewed, extended or replaced and to improvements thereafter erected on or attached to such property or asset or any property or asset acquired in substitution or replacement thereof, (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 (i3) the aggregate principal amount of the obligations secured by such Liens (other than Indebtedness as defined in clause (f) Lien does not exceed the principal amount of the definition thereof which has not been assumed obligations secured by Infinity or any of its Subsidiaries and where the Lien relates so renewed, extended or replaced, together with reasonable out-of-pocket expenses and accrued interest with respect to Property acquired the obligations so renewed, extended or replaced, and (4) the obligations secured by Infinity 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 of its Subsidiaries in satisfaction, in whole or in part, of indebtedness to Infinity or any of its Subsidiariesincrease that, in the ordinary course reasonable opinion of business (any the Company, is commercially reasonable at the time of 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 outstandingincrease; and
(om) any extension, renewal other Liens securing Indebtedness or replacement other monetary obligations of the foregoingCompany or any Significant Subsidiary; provided, however, that, except that at the time any such Indebtedness or other monetary obligation is incurred (and after giving effect thereto and to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)concurrent repayment of any Indebtedness or other monetary obligations with the proceeds thereof), 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 provided further that, notwithstanding the foregoing, the Company will not grant any Liens permitted 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 paragraph Agreement and the Notes shall not concurrently be spread secured equally and ratably with such Indebtedness pursuant to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)documentation in form and substance reasonably satisfactory to the Required Holders.
Appears in 1 contract
Sources: Note Purchase Agreement (Hawaiian Electric Industries Inc)
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist (i) any Lien upon any accounts, inventory, cash or investment securities which constitute Collateral except (A) Permitted Inventory Liens, (B) statutory Liens in respect of First Purchase Payables, (C) Liens described in clauses (a), (c), (e) and (f) of clause (ii) below, and (D) any other Liens expressly permitted to encumber such Collateral under any Security Document covering such Collateral or (ii) any Lien upon any of its Propertythe properties or assets, or enter into any Sale/Leaseback with respect to any other than such Property, whether Collateral described in clause (i) above which it now owned owns or hereafter acquired; providedacquires except the following (Liens, that to the foregoing restrictions shall not apply to:extent permitted by this Section, herein called "Permitted Liens"): 004726 000020 DALLAS 1786243.3 SECOND AMENDED AND RESTATED CREDIT AGREEMENT [CONFORMED THROUGH AUGUST 2004]
(a) Liens created pursuant to this Agreement or the Security Documents and Liens existing on the date of this Agreement and listed in the Disclosure Schedule.
(b) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are is being contested in good faith and by appropriate proceedings proceedings, if necessary, for which adequate reserves are maintained on the books of any Restricted Person in accordance with respect thereto are maintainedGAAP;
(bc) pledges or deposits of cash or securities under worker's compensation, unemployment insurance or other social security legislation;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 overdue for a period of more than 30 60 days past due or the validity of which are is being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal , if necessary, and for which adequate reserves are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting Restricted Person in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationaccordance with GAAP;
(e) pledges Liens on cash margin collateral securing only Hedging Contracts permitted under Section 7.3;
(f) deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fg) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gh) Liens on Property in respect of operating leases and Capital Leases permitted under Section 7.1 covering only the property subject thereto;
(i) rights reserved to or vested in any governmental authority by the terms of any Subsidiary right, power, franchise, grant, license or permit, or by any provision of Infinity law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(j) rights reserved to or vested by Law in any governmental authority to in any manner, control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws; 004726 000020 DALLAS 1786243.3 SECOND AMENDED AND RESTATED CREDIT AGREEMENT [CONFORMED THROUGH AUGUST 2004]
(k) 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;
(l) inchoate Liens in respect of pending litigation or with respect to a judgment which is or was merged with or into Infinity or has not resulted in an Event of Default under Section 8.1; and
(m) Liens existing on any Subsidiary thereof; provided, that such Liens are or were in existence property of a Person at the time such Person becomes a Restricted Person 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 existing at the time of the relevant transaction;
(h) Liens acquisition upon real and/or personal any property acquired (by the purchase, constructionmerger or consolidation or otherwise (whether or not the Indebtedness secured thereby shall have been assumed); provided, foreclosurehowever, deed that in lieu the case of foreclosure or otherwiseany such Lien (i) such Lien shall at all times be confined solely to any such property and, if required by Infinity or any the terms of its Subsidiariesthe instrument creating such Lien, each of other property which Liens either is an improvement to such acquired property, (Aii) existed on such Property before the time of its acquisition and Lien 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; providedtransaction, that no and (iii) the Indebtedness secured by 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 be 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 such Property or other Property of equivalent value)Section 7.1.
Appears in 1 contract
Limitation on Liens. Infinity will The Borrower shall not, and will shall not permit any of its Material Subsidiaries other Restricted Person to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the Closing Date and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges (i) not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP or (ii) which could not, individually or in the aggregate be reasonably expected to have a Material Adverse Effect;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including 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 (i) which are not more than sixty (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 or (ii) with respect to which failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) Liens on deposits of cash or securities in favor of the seller of any property intended to be acquired in an Investment permitted pursuant to Section 7.06 to be applied against the purchase price for such Investment;
(g) Liens arising pursuant to customary provisions in joint venture agreements or arrangements, limited liability company agreements and other similar agreements relating solely to obligations of the Person granting such Liens to secure obligations under such joint venture, limited liability company or other similar agreement;
(h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(gi) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any Subsidiary right, power, franchise, grant, license or permit, or by any provision of Infinity law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(j) rights reserved to or vested by Law in any Governmental Authority to control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein under any and all Laws;
(k) 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;
(l) inchoate Liens in respect of pending litigation or with respect to a judgment that has not resulted in an Event of Default under Section 8.01;
(m) statutory Liens in respect of payables;
(n) any Lien securing Indebtedness permitted by Section 7.01(g) or other obligations of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, as the case may be, were (ii) such Lien shall not created in anticipation thereof apply to any other than to finance the purchase thereof and are not spread to cover any Property other than the Property covered at the time property of the relevant transactionBorrower or any Subsidiary, 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;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(jo) Liens securing Indebtedness owed to Infinity permitted by Sections 7.01(e) or to any Wholly Owned Subsidiary of Infinity7.01(h);
(kp) Liens on cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(q) Liens in respect of operating leases covering only the property subject thereto;
(r) Liens on Equity Interests of Unrestricted Persons (other than Liens on Equity Interests in (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 any Material Subsidiary (except prior to the extent consummation of breaches of representations and warranties of Infinity or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) the ETP Merger, ETP and (ii) upon and after the Property consummation of Infinity to secure the ETP Merger, SXL) and joint ventures securing Indebtedness or other obligations of Infinity in an aggregate amount not greater than $125,000,000such Unrestricted Person or joint venture;
(ls) Sale/Leasebacks consummated prior Liens securing (i) the Obligations, the Lender Hedging Obligations and the Other Hedging Obligations; (ii) the Term Loan Obligations and/or any Term Loan Refinancing Indebtedness, in each case, permitted under Section 7.01; (iii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the Closing Date;
terms of the Indenture or the documentation governing the Senior Note Refinancing Indebtedness to be equally and ratably secured with the Term Loan Obligations, the Senior Note Obligations or Senior Note Refinancing Indebtedness; and (miv) any Sale/Leaseback of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(mobligations for other Indebtedness incurred pursuant to Section 7.01(l);
(nt) additional Liens upon real and/or personal propertyLiens, and additional Sale/Leasebacks; provided, that the sum of (i) arising out of conditional sale, title retention, consignment or similar arrangements for the aggregate principal amount sale of the obligations secured goods entered into 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, Restricted Person in the ordinary course of business (any such Indebtednessbusiness, "Specified Section 5.5(n) Indebtedness")) and (ii) on assets being Disposed of by any Restricted Person pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the aggregate Sale/Leaseback Attributable Debt with Disposition of such assets, provided that such merger agreement, stock or asset purchase agreement or similar agreement in respect of the Disposition of such asset is permitted pursuant to such Sale/Leasebacks shall not exceed $125,000,000 at any one time outstandingthe terms of this Agreement; and
(ou) Liens incurred with respect to obligations that do not in the aggregate exceed $50,000,000 at any extension, renewal or replacement time outstanding. Notwithstanding any of the foregoing; provided, however, that, except foregoing to the extent otherwise contrary, other than as permitted by this Section 5.5 clause (s) above, no Liens of the kind set forth in clauses (a) through and including Section 5.5(n))(u) above shall be permitted on the Equity Interests of (i) ETP/SXL GP, (ii) ETP LLC, or (iii) (y) prior to the Liens permitted under this paragraph shall not be spread to cover any additional Indebtedness or Property consummation of the ETP Merger, ETP and (other than a substitution z) upon and after the consummation of like Property or improvements on such Property or other Property of equivalent value)the ETP Merger, SXL.
Appears in 1 contract
Limitation on Liens. Infinity will The Borrower shall not, and will shall not permit any of its Material Subsidiaries other Restricted Person to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or other social security legislation;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including 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 sixty (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) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein 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 that 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 any Subsidiary of Infinity or existing on any property of any Person which is or was merged with or into Infinity or any that becomes a Subsidiary thereof; provided, that such Liens are or were in existence at after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or became a Subsidiary of Infinity in connection with such acquisition or such Person merged with or into Infinity or any Subsidiary thereofbecoming a Subsidiary, 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;
(hii) Liens 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 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, 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 not apply to or cover any Property of Infinity or such Subsidiary other than the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor property of the United States of America Borrower or any state thereof Subsidiary, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or any departmentthe date such Person becomes a Subsidiary, agency or instrumentality or political subdivision 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 United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured amount permitted by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing DateSection 7.02(m);
(m) Liens securing Indebtedness permitted by Section 7.01(f), 7.01(g) or 7.01(h); provided that such Liens do not secure Indebtedness that together with (but without duplication) all Indebtedness secured by Liens permitted under Section 7.02(l) exceeds a principal amount at any Sale/Leaseback one time of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(m)$35,000,000;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that on cash margin collateral securing Hedging Contracts permitted under Section 7.10;
(o) Liens in respect of operating leases covering only 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 outstandingproperty 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) any extensionabove shall be permitted on the Equity Interests of ETP, renewal ETP GP, ETP LLC, Regency, Regency GP 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 such Property or other Property of equivalent value)Regency LLC.
Appears in 1 contract
Limitation on Liens. Infinity will not, and Such Borrower will not permit any of its Material Subsidiaries toincur, create, incurassume, assume or suffer permit to exist any Lien upon any of its Propertyproperty, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following (herein referred to as "Permitted Liens"):
(a) Liens imposed on the property described on Schedule 5 hereto to secure Permitted Debt;
(b) Liens in favor of the Agent for the benefit of itself and the Banks;
(c) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of such Borrower to use such assets in its business, and none of which encumbrances is violated in any material respect by any Governmental Authority existing or proposed structures or land use;
(d) Liens for taxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if for which adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationhave been established;
(e) pledges Liens of mechanics, materialmen, warehousemen, carriers, or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, similar statutory Liens securing obligations to secure surety, appeal or performance bonds and contractual and other obligations of a like nature that are incurred in the ordinary course of business and are not involving the borrowing of moneyyet due or are being contested in good faith;
(f) easementsLiens resulting from good faith deposits to secure payments of workmen's compensation or other social security programs or to secure the performance of tenders, rights-of-waystatutory obligations, restrictions surety and appeal bonds, bids, contracts (other similar encumbrances incurred than for payment of Debt), or leases made in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity and its Subsidiaries taken as a wholebusiness;
(g) Liens on Property created under pooling orders, operating agreements, and similar agreements relating to the Mortgaged Properties with respect to obligations of any Subsidiary of Infinity a Borrower or of any Person Castle 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 delinquent or are being contested in good faith, by appropriate proceedings diligently pursued and for which adequate reserves have been established and other Liens incidental to cover any Property other than the Property covered at conduct of its business or the time ownership of its property and assets which do not in the relevant transactionaggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of his business;
(h) Liens upon real and/or personal property acquired (Defects or irregularities of title arising from events or transactions which have been barred by purchase, construction, foreclosure, deed in lieu of foreclosure limitations or otherwise) by Infinity or any of its Subsidiaries, each of which Liens either (A) existed on such Property before the time of its acquisition that are acceptable to a reasonable 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, 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 prudent oil and improvements thereongas operator;
(i) mortgages on Property securing indebtedness Royalties, overriding royalties, production payments and other burdens relating to the Mortgaged Properties that do not cause a Borrower or Castle to have an interest in favor production under any oil and gas lease, or unit to which such lease may be contributed, which is materially less than the interest in production from the Mortgaged Properties as specified in the Deeds of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteTrust;
(j) Liens securing Indebtedness owed to Infinity on pipelines or to any Wholly Owned Subsidiary pipeline facilities that arise by operation of Infinitylaw;
(k) Liens (i) upon under the receivables Marketing Partnership Agreement, Pipeline Partnership Agreement, and inventory Production Partnership Agreement, including all rights 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) belowfirst refusal thereunder; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;and
(l) 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 securing oil 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 such Property or other Property of equivalent value)gas hedging agreements.
Appears in 1 contract
Sources: Loan Agreement (Castle Energy Corp)
Limitation on Liens. Infinity The Borrower will notnot incur, create, assume, or permit to exist, and will not permit any of its Material Subsidiaries toRestricted Subsidiary to incur, create, incurassume, assume or suffer permit to exist exist, any Lien upon any of its Propertyproperty, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following (herein referred to as "Permitted Liens"):
(a) Liens imposed on the property described on Schedule 10.2 hereto to secure Permitted Debt;
(b) Liens in favor of the Collateral Agent for the benefit of itself, the Documentation Agent, the Agent, the Banks and the Issuing Banks;
(c) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of the Borrower or the Restricted Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by any Governmental Authority existing or proposed structures or land use;
(d) Liens for taxes, assessments assessments, or other governmental charges which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if for which adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationhave been established;
(e) pledges Liens of mechanics, materialmen, warehousemen, carriers, landlords, or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, similar statutory Liens securing obligations to secure surety, appeal or performance bonds that are not yet due and contractual and other obligations of a like nature are incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easementsLiens resulting from good faith deposits to secure payments of workmen's compensation, rights-of-wayunemployment insurance or other social security programs or to secure the performance of tenders, restrictions statutory obligations, surety and appeal bonds, abandonment bonds, bids, contracts (other similar encumbrances incurred than for payment of Debt or relating to Swap Obligations), or leases made in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity and its Subsidiaries taken as a wholebusiness;
(g) Liens on Property of any Subsidiary of Infinity or of any Person required margin collateral in accounts which is or was merged with or into Infinity or any Subsidiary thereofsecure Swap Obligations; provided, that the obligations secured by such Liens are or were shall not exceed $2,500,000 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 transactionaggregate;
(h) Liens upon real and/or personal on 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 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, all or a part of the cost (including Borrower or 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 thereonRestricted Subsidiaries in connection with Capital Lease Obligations permitted under Section 10.1(g);
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages Liens created in connection with pollution control(i) a $300,000 production payment made by Borrower to American Founders Life Insurance Company,(ii) a $750,000 production payment made by Borrower to American Founders Life Insurance Company, industrial revenue or and (iii) similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision arrangements with the prior written consent of any statutethe Required Banks;
(j) Liens securing Indebtedness owed arising solely by virtue of any statutory or common law provision relating to Infinity banker's liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided, that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Borrower in excess of those set forth by regulations promulgated by the Federal Reserve Board, and (ii) such deposit account is not intended by the Borrower or any Wholly Owned Subsidiary of Infinityto provide collateral to the depository institution;
(k) Liens (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 customarily granted pursuant to clause (ii) belowjoint venture agreements, joint operating agreements and pooling or unitization agreements; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;and
(l) 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 Inchoate 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 arising under this paragraph shall not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)ERISA.
Appears in 1 contract
Limitation on Liens. Infinity The Domestic Borrower will notnot incur, create, assume, or permit to exist, and will not permit any of its Material Subsidiaries toSubsidiary to incur, create, incurassume, assume or suffer permit to exist exist, any Lien upon any of its Propertytheir respective properties, assets, or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following (herein referred to as "Permitted Liens")
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintaineddisclosed on Schedule 10.2 hereto;
(b) carriers'Liens in favor of either Agent for the benefit of the applicable Banks and the applicable Issuing Bank;
(c) Encumbrances consisting of minor easements, warehousemen'szoning restrictions, mechanics', materialmen's, repairmen's, architects' or other like Liens arising restrictions on the use of property that do not (individually or in the ordinary course aggregate) materially affect the value of business the assets encumbered thereby or materially impair the ability of the Domestic 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 for taxes, assessments, or other governmental charges which are not overdue delinquent for a period of more longer than 30 ninety (90) 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationwhich adequate reserves have been established;
(e) pledges Liens of landlords, tenants, vendors, mechanics, materialmen, warehousemen, carriers, or deposits to secure the performance of bids, trade contracts other similar statutory Liens securing obligations that are not delinquent for longer than ninety (other than for borrowed money), leases, statutory obligations to secure surety, appeal or performance bonds 90) days and contractual and other obligations of a like nature are incurred in the ordinary course of business or which are being contested in good faith and not involving the borrowing of moneyfor which adequate reserves have been established;
(f) easementsLiens resulting from good faith deposits to secure payments of workmen's compensation or other social security programs or to secure the performance of tenders, rights-of-waystatutory obligations, restrictions surety and appeal bonds, bids, or contracts (other similar encumbrances incurred than for payment of Debt) , or leases made in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Infinity and its Subsidiaries taken as a wholebusiness;
(g) Liens on Property assets, the value of which shall not exceed 7.5% of Consolidated Tangible Net Worth, provided that such assets may not include (i) the Collateral or (ii) the accounts receivable 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 transactionDomestic Borrower's Foreign Subsidiaries;
(h) Liens upon real and/or personal property acquired (by purchase, construction, foreclosure, deed Licenses of surveys or portions thereof in lieu the Data Library to others in the ordinary course of foreclosure or otherwise) by Infinity 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 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 thereonbusiness;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;Inchoate Liens arising under ERISA; and
(j) Liens securing Indebtedness owed to Infinity Rights of set-off or to any Wholly Owned Subsidiary banker's liens created by law in favor of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)commercial banks.
Appears in 1 contract
Sources: Credit Agreement (Veritas DGC Inc)
Limitation on Liens. Infinity The Guarantor will not, and nor will not it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if if, unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintainedmaintained on the books of the Guarantor or any of its Material Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's ’s compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity the Guarantor or any of its Material Subsidiaries;
(f) Liens on assets of Persons that become Subsidiaries of the Guarantor after the date of this Agreement, provided that such Liens are in existence at the time the respective Persons become Subsidiaries of the Guarantor and its Subsidiaries taken as a wholewere not created in anticipation thereof;
(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 upon real and/or tangible personal property acquired after the date hereof (by purchase, construction, foreclosure, deed in lieu of foreclosure construction or otherwise) by Infinity the Guarantor or any of its Material Subsidiaries, each of which Liens either (A) existed on such Property property before the time of its acquisition and was not created in anticipation thereof 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 the respective property; provided in the case of clause (B) that such Property Lien attaches to such asset within 270 days after the acquisition or improvements thereoncompletion of construction and commencement of full operations thereof; provided, provided further that no such Lien shall extend to or cover any Property property of Infinity the Guarantor or such Material Subsidiary other than the respective Property 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 95% of the fair market value (as determined in good faith by a senior financial officer of the Guarantor) of the respective property at the time it was acquired (by purchase, construction or otherwise);
(h) Liens on assets consisting of a capital project and rights related thereto (“Project Assets”) securing Indebtedness incurred to finance the acquisition, construction or development of such Project Assets; provided that (x) such Indebtedness is non-recourse to any other assets; (y) the aggregate principal amount of Indebtedness secured by Liens permitted by this paragraph (h) may at no time exceed $200,000,000; and (z) such Liens attach to such Project Assets within two years after the initial acquisition or completion of construction or development of such Project Assets;
(i) mortgages on Property securing indebtedness Liens upon real and/or personal property of the Guarantor or any Material Subsidiary of the Guarantor in favor of the United States of America or any state thereof or State thereof, any department, agency or instrumentality or political subdivision of the United States of America or any state State thereof, or any bonding authority (including any authority established for the issuance of industrial revenue bonds or similar instruments) to secure partial, progress, or advance or other payments pursuant to any contract or statute or to secure Indebtedness (including, but not limited to, industrial revenue bonds and similar instruments) incurred for the purpose of financing refinancing all or any part of the purchase price or the cost of construction of the Property subject to constructing or improving such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteproperty;
(j) Liens securing Indebtedness owed to Infinity on (i) accounts receivable and related contract rights, letters of credit, accounts and similar assets arising in connection with any securitization transaction, and (ii) promissory notes, regulatory and any other related assets in connection with any financing transaction, in each case whether denominated as sales or to any Wholly Owned Subsidiary of Infinityborrowings;
(k) Liens (i) upon granted to provide security in substitution for collateral presently securing existing Indebtedness, so long as such substitute collateral does not cover any property other than the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of property securing 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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000existing Indebtedness;
(l) Sale/Leasebacks consummated prior Liens securing judgments up to $200,000,000 for the Closing Datepayment of money in an amount not resulting (whether immediately or with the passage of time) in an Event of Default under subsection (h) of Article VII;
(m) any Sale/Leaseback of assets of Infinity owned Liens in existence on the Closing Date date hereof and listed on Schedule 5.5(m)IV;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; providedassets or revenues created after the date hereof, provided that the sum of (i) aggregate outstanding Indebtedness secured thereby and incurred on and after 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 date hereof shall not exceed $125,000,000 at any one time outstandingexceed 10% of Tangible Assets; 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)), that the Liens permitted under this paragraph hereunder shall not be spread to cover any additional Indebtedness or Property property (other than a substitution of like Property or improvements on such Property property); and provided further that the sale, mortgage or other Property transfer of equivalent value)timber in connection with an arrangement under which the Guarantor or any of its Subsidiaries is obligated to cut such timber (or any portion thereof) in order to provide the transferee with a specified amount of money (however determined) shall not be deemed to create Indebtedness secured by a Lien hereunder.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxesTaxes, assessments or governmental charges or levies, or other statutory obligations, not yet due and payable at the time delinquent or which that are being contested in good faith and by appropriate proceedings if (provided, that adequate reserves with respect thereto to such proceedings are maintainedmaintained on the books of the Borrower or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) carriers'’, warehousemen's’s, landlords’, mechanics'’, contractors’, materialmen's’s, repairmen's, architects' ’s or other like Liens imposed by law or arising in the ordinary course of business which secure amounts that are not overdue for a period of more than 30 60 days or which if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, or that are being contested in good faith and by appropriate proceedingsproceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of the Group Members in conformity with GAAP), (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and (iii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such other goods in the ordinary course of business;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(di) pledges or deposits under worker's in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Group Member;
(ed) pledges Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory obligations to secure obligations, surety, stay, customs and appeal or bonds, performance bonds and contractual and/or return of money bonds, completion guarantees and other obligations of a like nature (including those to secure health and safety or environmental obligations) incurred in the ordinary course of business;
(e) easements, rights-of-way, covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property and Liens to public utilities or any municipality when required in connection with the supply of services or utilities to a Loan Party), encroachments, protrusions and other similar encumbrances and title defects incurred in the ordinary course of business that, in the aggregate, do not materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of the Group Members taken as a whole; provided, that none of the foregoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereof (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies, including if disclosed on such title policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereof, (y) on the applicable Mortgaged Property disclosed on any title insurance policies obtained on Mortgaged Properties in connection with Mortgages executed and delivered after the date hereof to the extent securing Indebtedness permitted under Section 6.2 or (z) on real property that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the obligations secured or benefited by such Liens is permitted under Section 6.2;
(g) Liens securing Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations and Attributable Indebtedness); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility, Replacement Facility, Extended Term Loans, Specified Hedge Agreement and Cash Management Obligations, including, with respect to any Specified Hedge Agreements, Liens created pursuant to the Loan Documents on any margin or collateral posted by any Group Member under a Specified Hedge Agreement as a result of any regulatory requirement, swap clearing organizations, or other similar regulations, rule, or requirement);
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens (A) existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of the Borrower after the date hereof (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted under Section 6.2(g) or is Refinancing Indebtedness in respect thereof and (ii) such Liens cover solely the Property so acquired or the Property of the Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto) unless another available basket in this Section 6.3 is utilized and (B) securing Indebtedness incurred pursuant to Section 6.2(g)(II); provided that Liens permitted pursuant to this clause (k)(B) may be pari passu with or junior to the Liens on Collateral (to the extent permitted pursuant to the terms thereof) subject to the applicable Intercreditor Agreement;
(l) Liens securing (x) Indebtedness permitted under Section 6.2(h) or any Refinancing Indebtedness in respect thereof, (y) obligations arising under any Specified Hedge Agreements (as defined in the ABL Credit Agreement as in effect on the date hereof) entered into not for speculative purposes or (z) Cash Management Obligations (as defined in the ABL Credit Agreement as in effect on the date hereof) in the ordinary course of business; provided, that, in each case, the relative Lien priority thereof is set forth in the applicable Intercreditor Agreement and/or another intercreditor agreement reasonably acceptable to the Administrative Agent;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n) Liens arising out of conditional sale, installment sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the borrowing case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(fp) easementslicenses and sub-licenses of Intellectual Property granted by any Group Member;
(q) Liens arising from Uniform Commercial Code (or equivalent statutes) financing statement filings regarding operating leases or consignments entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business or consistent with industry practice or purported Liens evidenced by the filing of precautionary Uniform Commercial Code (or equivalent statutes) financing statements or similar public filings and not relating to Indebtedness for borrowed money;
(r) Liens on property rented to, rightsor leased by, any Group Member pursuant to a Permitted Sale Leaseback; provided, that (i) such Liens do not encumber any other property of any Group Member and the proceeds and products of and accessions to such property, and (ii) such Liens secure only the Attributable Indebtedness incurred in connection with such Sale and Leaseback Transaction;
(s) Liens on (i) the assets (including Capital Stock) owned by any Non-Loan Party Subsidiaries that secure Indebtedness or other obligations of Non-Loan Party Subsidiaries permitted under this Agreement, (ii) the Capital Stock of Non-Loan Party Subsidiaries or joint ventures, securing Indebtedness of such Non-Loan Party Subsidiaries or joint ventures permitted under Section 6.2 (and related obligations) or (iii) the Capital Stock of Unrestricted Subsidiaries;
(t) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt, any Incremental Equivalent Debt (other than unsecured Incremental Equivalent Debt) or any Permitted Debt Exchange Notes, and any Permitted Refinancing of-way, restrictions and any Guarantee Obligations by the Guarantors in respect of, any of the foregoing; provided, that the relative Lien priority in respect of any such Indebtedness shall be set forth in the Intercreditor Agreements or another intercreditor agreement reasonably acceptable to the Administrative Agent;
(u) good ▇▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made in connection with a Permitted Acquisition or any other Investment (other than Investments under Section 6.7(q)) or letter of intent or purchase agreement permitted hereunder;
(v) Liens not otherwise permitted by this Section 6.3 so long as the aggregate amount of obligations secured thereby does not exceed the greater of $65.0 million and 40.0% of Consolidated EBITDA for the Relevant Reference Period at the time of incurrence thereof; provided that Liens permitted pursuant to this clause (v) may be pari passu with or junior to the Liens on Collateral subject to the applicable Intercreditor Agreement;
(w) Liens securing Refinancing Indebtedness permitted under Section 6.2(v) (and related obligations) if such Liens are permitted to secure such Indebtedness in accordance with the definition of “Refinancing Indebtedness”;
(x) Liens in favor of Holdings, the Borrower or any Subsidiary Guarantor securing intercompany Indebtedness permitted hereunder;
(y) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 6.7 to be applied against the purchase price for such Investment or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 6.5, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(i) Liens deemed to exist in connection with Investments in repurchase agreements under Section 6.7; provided, that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement, and (ii) reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(aa) Liens that are customary contractual rights of setoff relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business;
(bb) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar encumbrances agreements entered into in the ordinary course of business of the Group Members;
(cc) ground leases in respect of real property on which facilities owned or leased by any Group Member are located;
(dd) Liens on Permitted Receivables Financing Assets securing any Permitted Receivables Financing and Liens on Qualified Securitization Assets securing any Qualified Securitization Facility;
(ee) Liens securing obligations in respect of trade-related letters of credit permitted under Section 6.2 and incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens 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 Group Members and covering the goods (or the documents of Infinity title in respect of such goods) financed by such letters of credit and its Subsidiaries taken as a wholethe proceeds and products thereof;
(gff) Liens on Property of any Subsidiary of Infinity or of any Person securing Indebtedness permitted under Section 6.2(f) (other than Permitted Ratio Debt that constitutes unsecured Indebtedness), which is or was merged with or into Infinity or any Subsidiary thereofmay be secured by the Collateral; provided, that in each case, the relative Lien priority in respect of any such Liens are Indebtedness shall be set forth in the Intercreditor Agreements or were in existence at another intercreditor agreement reasonably acceptable to the time such Person becomes or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereof, as Administrative Agent and 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 transactionBorrower;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(kgg) Liens (i) upon the receivables on cash and inventory of Infinity or any of its Subsidiaries Cash Equivalents to secure Indebtedness resulting from financings obligations under Hedge Agreements of the type described in Section 6.2(n), including Liens on any margin or collateral posted by any Group Member under any such receivables and inventory in an aggregate amount not greater than $400,000,000 less the aggregate amount Hedge Agreement as a result of Indebtedness that is secured pursuant to clause (ii) below; providedany regulatory requirement, that the terms of such Indebtedness do not provide for any recourse to Infinity swap clearing organizations, or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity other similar regulations, rule, or any of its Subsidiaries in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) requirement, and (ii) upon securing obligations of the Property of Infinity to secure Indebtedness of Infinity type described in an aggregate amount not greater than $125,000,000;
Section 6.2(j) (l) Sale/Leasebacks consummated prior to excluding Cash Management Obligations and Cash Management Obligations (as defined in the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned ABL Credit Agreement as in effect on the Closing Date and listed on Schedule 5.5(mdate hereof));
(nhh) additional Liens upon real and/or personal property, and additional Sale/Leasebackssecuring Permitted RP Capacity Debt; provided, provided that the sum of (i) the aggregate principal amount of the obligations secured by such Liens (other than Indebtedness as defined in permitted pursuant to this clause (fhh) of may be pari passu with or junior to the definition thereof which has not been assumed by Infinity or any of its Subsidiaries and where Liens on Collateral subject to 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 applicable Intercreditor Agreement;
(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 undetermined 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 inchoate 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 such Property or other Property of equivalent value).arising
Appears in 1 contract
Sources: Term Loan Credit Agreement (Foundation Building Materials, Inc.)
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist exist, any Lien of any kind upon any of its Propertytheir property or assets, income or enter into any Sale/Leaseback with respect to any such Propertyprofits, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply to:
except (a) the Liens imposed by existing as of the date of this Agreement referred to in the financial statements referred to in Section 4.8 hereof, provided, however, that such Liens are not spread to cover other or additional indebtedness or property of the Company, any Governmental Authority Guarantor or any Subsidiary; (b) Liens for taxes, assessments or charges taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
maintained on the books of the Company, a Guarantor or a Subsidiary, as the case may be, in accordance with GAAP; (bc) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business for sums which are not overdue for a period of more than 30 45 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
; (d) pledges or deposits under in connection with 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 suretyobligations, surety and appeal or bonds, 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;
business; (f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as the Company, a whole;
Guarantor or a Subsidiary; (g) Liens on Property of any Subsidiary of Infinity covering real or of any Person which is or was merged with or into Infinity or any Subsidiary thereof; provided, that such Liens are or were personal property in existence at the time such Person becomes or became of acquisition thereof by the Company, 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 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 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, all Guarantor or a part of the cost Subsidiary, and purchase money mortgages and purchase money security interests (including the cost Lien or retained security title of constructiona conditional vendor) of such Property covering real 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 property hereafter acquired by Infinity the Company, a Guarantor or any of its Subsidiaries in satisfaction, in whole or in part, of indebtedness to Infinity or any of its Subsidiaries, a Subsidiary in the ordinary course of business (any business, provided such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and (ii) the aggregate Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks Lien shall not exceed $125,000,000 at any one time outstanding; and
(o) any extension, renewal or replacement 100% of the foregoingpurchase price of the property so encumbered and no such Lien covers, or is extended to cover, any other property owned by the Company, a Guarantor or a Subsidiary; (h) Liens in favor of the Bank; and (i) Liens granted in connection with Section 6.1(i), provided, however, that, except to that said Liens are granted solely on customer lists hereafter acquired by the extent otherwise permitted by Company and do not exceed a value of $6,000,000.00 in the aggregate during the term of 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 such Property or other Property of equivalent value)Agreement.
Appears in 1 contract
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any Principal Property or upon the stock, membership interests, partnership interests or other equity ownership interests of its Propertyany Subsidiary of Borrower (other than Unrestricted Subsidiaries), or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following (“Permitted Liens”):
(a) Liens securing (i) on a pari passu basis, both (x) the Obligations and (y) the Liabilities of any Restricted Person arising under the US/Canada Credit Agreement, and (ii) if required, any related interest hedge rate agreements;
(b) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 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 accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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, if necessary, by appropriate proceedings, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP;
(e) pledges Liens on cash and Cash Equivalents under or with respect to accounts with brokers or counterparties with respect to hedging contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing only hedging contracts;
(f) deposits of cash or securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fg) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity 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 transactionRestricted Person;
(h) Liens in respect of operating leases;
(i) Liens upon real and/or personal any property or assets directly or indirectly acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed); and improvements thereon;
any extension, renewal, refinancing, refunding or replacement (i) mortgages on Property securing indebtedness or successive extensions, renewals, refinancings, refundings or replacements), in favor whole or part, of the United States of America foregoing, provided, however, that such Liens shall not cover or secure any state thereof additional Indebtedness, obligations, property or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteasset;
(j) Liens securing Indebtedness owed rights reserved to Infinity or vested in any governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to any Wholly Owned Subsidiary of Infinitycondemn or acquire by eminent domain or similar process;
(k) Liens (i) upon the receivables and inventory of Infinity rights reserved to or vested by Law in any governmental authority to in any manner, control or regulate in any manner any of its Subsidiaries to secure Indebtedness resulting from financings the properties of such receivables any Restricted Person or the use thereof or the rights and inventory interests of any Restricted Person therein, 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 manner under any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000all Laws;
(l) Sale/Leasebacks consummated prior rights reserved to the Closing Dategrantors 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;
(m) any Sale/Leaseback inchoate Liens in respect of assets pending litigation or with respect to a judgment which has not resulted in an Event of Infinity owned on the Closing Date and listed on Schedule 5.5(m)Default under Section 8.1;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that the sum of (i) the securing obligations in an aggregate principal amount not to exceed at any time outstanding 10% of Borrower’s Consolidated Tangible Net Worth; and
(o) Liens related to the obligations secured by such Liens extension, renewal, refinancing, refunding or replacement (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 successive extensions, renewals, refinancings, refundings or any of its Subsidiaries in satisfactionreplacements), in whole or in part, of indebtedness to Infinity or any of its Subsidiariesclauses (a), in the ordinary course of business (any such Indebtedness, "Specified Section 5.5(n) Indebtedness")b) 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 foregoingthis Section 7.2; provided, however, that, except to the extent otherwise permitted by this Section 5.5 (including Section 5.5(n)), the that such Liens permitted under this paragraph shall not be spread to cover or secure any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)Indebtedness.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Plains All American Pipeline Lp)
Limitation on Liens. Infinity No Restricted Person will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, the properties or enter into any Sale/Leaseback with respect to any such Property, whether assets which it now owned owns or hereafter acquired; providedacquires, that except the foregoing restrictions shall not apply to:following ("Permitted Liens"):
(a) Liens created pursuant to this Agreement or the Security Documents and Liens existing on the date of this Agreement and listed in the Disclosure Schedule or Liens created pursuant to the Operating Credit Agreement, subject to the terms of the Intercreditor Agreement referred to in Section 4.1(m).
(b) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or the validity of which are is being contested in good faith and by appropriate proceedings proceedings, if necessary, for which adequate reserves are maintained on the books of any Restricted Person in accordance with respect thereto are maintainedGAAP;
(bc) pledges or deposits under worker's compensation, unemployment insurance or other social security legislation;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' landlord's, or other like Liens (including without limitation, Liens on property of Operating in the possession of storage facilities, pipelines or barges) arising in the ordinary course of business for amounts which are not overdue for a period of more than 30 60 days past due or the validity of which are is being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal , if necessary, and for which adequate reserves are maintained on the books of any order or decree but only to the extent, for an amount and for a period not resulting Restricted Person in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislationaccordance with GAAP;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholeany Restricted Person;
(g) Liens on Property in respect 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 operating leases and are not spread to cover any Property other than the Property covered at the time of the relevant transactionCapital Leases permitted under Section 7.1;
(h) Liens upon real and/or personal any property or assets acquired (after the date hereof by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity or any of its Subsidiariesa Restricted Person, each of which Liens either (Ai) existed on such Property property or asset before the time of its acquisition and was not created in anticipation thereof thereof, or (Bii) 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 property or improvements thereonasset; provided, provided that no such Lien shall extend to or cover any Property property or asset of Infinity or such Subsidiary a Restricted Person other than the respective Property property or asset so acquired (or constructed) and improvements thereonthe Indebtedness secured thereby is permitted under Section 7.1(d) hereof; and any extension, renewal, refinancing, refunding or replacement (or successive extensions, renewals, refinancings, refundings or replacements), in whole or part, of the foregoing, provided, however, that such Liens shall not cover or secure any additional Indebtedness, obligations, property or asset;
(i) mortgages on Property securing indebtedness rights reserved to or vested in favor any governmental authority by the terms of the United States any right, power, franchise, grant, license or permit, or by any provision of America law, to revoke or terminate any state thereof such right, power, franchise, grant, license or any department, agency permit or instrumentality to condemn or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured acquire by such mortgages in connection with pollution control, industrial revenue eminent domain or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteprocess;
(j) Liens securing Indebtedness owed rights reserved to Infinity or vested by Law in any governmental authority to in any Wholly Owned Subsidiary manner, control or regulate in any manner any of Infinitythe properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws;
(k) Liens (i) upon rights reserved to the receivables grantors of any properties of any Restricted Person, and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables the restrictions, conditions, restrictive covenants and inventory limitations, in an aggregate amount not greater than $400,000,000 less the aggregate amount of Indebtedness that is secured respect thereto, pursuant to clause (ii) below; providedthe terms, that the terms conditions and provisions of such Indebtedness do not provide for any recourse to Infinity rights-of-way agreements, contracts or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000agreements therewith;
(l) Sale/Leasebacks consummated prior Inchoate Liens in respect of pending litigation or with respect to the Closing Date;a judgment which has not resulted in an Event of Default under Section 8.1; and
(m) any Sale/Leaseback Liens on property of assets of Infinity owned on Operating permitted pursuant to 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 terms 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 such Property or other Property of equivalent value)Operating Credit Agreement.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Recourse Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertytheir properties, assets (including shares of stock) or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges or claims which are not yet due and payable delinquent or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) Liens of landlords, laborers and employees arising by operation of law and suppliers’, carriers'’, warehousemen'swarehousemens’, mechanics'’, materialmen'smaterialmens’, repairmen's, architects' repairmens’ or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 45 days or or, if more than 45 days overdue, 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislation; provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the Security Documents or any of the Unpledged International Property;
(ed) pledges or deposits to secure the performance of tenders, bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, stay, surety and appeal or bonds, performance bonds bonds, performance and contractual completion guarantees and other obligations of a like nature incurred in the ordinary course of business (including those to secure health, safety and not involving environmental obligations); provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the borrowing Security Documents or any of moneythe Unpledged International Property;
(fe) easements, reservations, licenses, rights-of-way, zoning restrictions and covenants, conditions and restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, or title defects or other restrictions on as to the use of Property real properties or minor imperfections in title thereto and Liens under leases and subleases incidental to the conduct of the business of such Person or to the ownership of its properties which, in the aggregate, are not material in amount, and which do not materially detract from the use of the property subject thereto or materially interfere in any material respects with the ordinary conduct of the business of Infinity 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 upon real and/or personal property acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity Company 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 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;
(if) mortgages on Property securing indebtedness Liens in favor of the United States of America for amounts paid by the Company or any state thereof of its Subsidiaries as progress payments under government contracts entered into by them; provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any department, agency or instrumentality or political subdivision of the United States Unpledged International Property;
(g) Liens existing on the date of America this Agreement as set forth in Schedule 11.3(g);
(h) Liens under the Security Documents (including, without limitation, Liens which secure Designated Eligible Obligations as provided for in the Intercreditor Agreement) or any state thereof, incurred for the purpose of financing other Lien securing all or any part portion of the purchase price Payment Obligations, the Term Loan Payment Obligations or any refinancings thereof permitted by Section 11.2(a) or 11.2(s), or Designated Eligible Obligations or Term Loan Eligible Obligations, in each case, as provided for in the cost Intercreditor Agreement or other applicable intercreditor agreement contemplated hereunder as a condition to the incurrence of construction such Indebtedness or, in the case of any Refinancing Notes (as defined in the Property subject Term Loan Agreement), as provided for in the Intercreditor Agreement or other intercreditor agreement between the Administrative Agent and the trustee for the Refinancing Notes, in form and substance reasonably satisfactory to the Administrative Agent, providing for the Liens securing such mortgages Refinancing Notes to be on a pari passu basis with the Liens securing the Term Loans;
(including without limitation such debt secured by such mortgages i) attachment, judgment, order or other similar Liens arising in connection with pollution controlcourt or arbitration proceedings; provided, industrial revenue however, that the same are being contested in good faith and any appropriate legal proceedings which may have been duly initiated for the review of such judgment or similar financings) Lien shall not have been finally terminated or incurred to secure progressthe period within which such proceedings may be initiated shall not have expired and, advance or other payments pursuant to any contract or provision in each case, shall not otherwise constitute an Event of any statuteDefault under Section 12.1(k);
(j) other Liens securing incidental to the conduct of the business of the Company and its Subsidiaries or the ownership of any of their assets not incurred in connection with Indebtedness owed to Infinity or to Contingent Obligations, which Liens do not in any Wholly Owned Subsidiary case materially detract from the value of Infinitythe property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries; provided, however, that no such Lien shall encumber any Collateral under any Security Document or any of the Unpledged International Property;
(k) Liens securing any Indebtedness permitted by Section 11.2(d) or any Liens replacing such permitted Liens; provided, however, that (i) upon no such Lien shall encumber any asset of the receivables Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property and inventory (ii) any such Lien which secures reimbursement obligations under letters of Infinity credit not issued under this Agreement shall be limited to (A) the assets acquired or shipped with the support of such letter of credit and (B) any assets of a Foreign Subsidiary which are in the care, custody or control of such issuer of such letter of credit in the ordinary course of business;
(l) Liens securing any Indebtedness permitted by Section 11.2(g), Section 11.2(h) or obligations of any Foreign Subsidiary or a foreign branch of any Domestic Subsidiary principally doing business outside of the United States in respect of treasury, depository, overdraft and other cash management arrangements maintained with any Lender, any Term Loan Lender or any Affiliate of a Lender or a Term Loan Lender or any other Person reasonably acceptable to the Administrative Agent or any Liens replacing such permitted Liens; provided, however, that no such Lien shall encumber any asset of the Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property;
(m) Liens in the nature of counterpart deposits or pledges of cash deposits of the Company 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 Foreign Subsidiaries of the aggregate amount Company or a foreign branch of a Domestic Subsidiary principally doing business outside of the United States, which Indebtedness that is secured permitted pursuant to clause Section 11.2(k)); provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any of the Unpledged International Property;
(n) Liens in favor of securities intermediaries, commodity intermediaries, brokers and dealers arising in connection with the acquisition or disposition of investments of the type permitted by Section 11.8; provided, however, that such Liens (i) attach only to such investments and (ii) belowsecure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such investments and not any obligation in connection with margin financing; and provided, further, that the terms of such Indebtedness do not provide for any recourse to Infinity or any Material Subsidiary (except Liens attach only to the extent property of breaches of representations and warranties of Infinity the Company or its Subsidiary, as the case may be, for whose account any such obligations have been incurred;
(o) Liens granted by the Company or any of its Subsidiaries in connection with (including the interest of a lessor under a Capital Lease and Liens to which any property is subject at the time, on or after the date hereof, of the Company’s or such financings and other recourse customary in connection with "off-balance sheet" financingsSubsidiary’s acquisition thereof) securing Indebtedness permitted under Section 11.2(l) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity limited, in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior each case, to the Closing Date;
property the acquisition, development, purchase, lease, repair, addition or improvement of which is financed or reimbursed with the proceeds of such Indebtedness or subject to such Capital Lease (m) any Sale/Leaseback or proceeds thereof or additional property in the nature of assets of Infinity owned on the Closing Date and listed on Schedule 5.5(mimprovements thereto);
(np) additional Liens upon real and/or personal property, and additional Sale/Leasebacksin the nature of counterpart deposits or pledges of cash deposits of the Company or any of its Subsidiaries to secure Indebtedness permitted pursuant to Section 11.2(m); provided, however, that the sum amount of any such deposit does not exceed the amount of the Indebtedness it secures;
(q) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(b);
(r) [Intentionally Omitted.];
(s) Liens (A) on the assets or property (including shares of Capital Stock) of a Subsidiary of the Company existing (or required pursuant to agreements existing) at the time such Subsidiary became a Subsidiary of the Company or (B) on any property at the time the Company or a Subsidiary of the Company acquired such property (including any acquisition by means of a merger or consolidation with or into the Company or any Subsidiary of the Company) in each case not incurred or created in connection with or in anticipation of such Subsidiary becoming a Subsidiary of the Company or such acquisition; provided, however, that such Liens do not extend to or cover any other property or assets of the Company or any of its Recourse Subsidiaries other than the proceeds of the assets or property described in clause (A) or (B) above and any improvements thereto or as otherwise permitted under this Section 11.3;
(t) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(u) Liens that are contractual rights of set-off and other Liens arising as a matter of law (i) relating to the aggregate principal amount establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any Recourse Subsidiary to permit satisfaction of overdraft or similar obligations secured incurred in the ordinary course of business of the Company and its Recourse Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Company, the Company or any Recourse Subsidiary in the ordinary course of business;
(v) Liens on inventory or equipment of the Company or any Subsidiary granted in the ordinary course of business to the Company’s client or customer at which such inventory or equipment is located;
(w) Liens arising from precautionary UCC financing statement filings (or similar filings under other applicable law) regarding leases entered into by such the Company or any Subsidiary in the ordinary course of business;
(x) Liens on Receivables and Related Assets incurred in connection with a Receivables Facility (other than Indebtedness as defined the Capital Stock of any Receivables Subsidiary);
(y) leases, licenses, subleases and sublicenses of property granted by the Company and its Subsidiaries in clause (f) the ordinary conduct of the definition thereof which has not been assumed by Infinity business of the Company or any of its Subsidiaries and where which do not secure any Indebtedness;
(z) Liens securing Indebtedness in respect of Permitted Refinancings permitted under Section 11.2 to the extent such Liens are permitted under clause (g) of the definition of “Permitted Refinancing”;
(aa) Liens granted in favor of issuers of documentary or trade letters of credit for the account of the Company or such Subsidiary or bankers’ acceptances, which Liens secure the reimbursement obligations of the Company or such Subsidiary on account of such letters of credit or bankers’ acceptances; provided that each such Lien relates is limited to Property (i) the assets acquired by Infinity 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;
(bb) Liens on (i) the net proceeds of the incurrence of Indebtedness to secure any redemption, repurchase or defeasance obligations in respect of such Indebtedness or any other Indebtedness being refinanced with the proceeds of its Subsidiaries such Indebtedness and (ii) any additional cash to secure such redemption, repurchase or defeasance obligations in satisfactionan amount which, in whole when added to such net proceeds, is necessary to effect such redemption, repurchase or in part, of indebtedness to Infinity or any of its Subsidiaries, defeasance;
(cc) deposits 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; andsecure liability to insurance carriers;
(odd) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 11.2; provided that such Liens do not extend to any extension, renewal assets other than those assets that are the subject of such repurchase agreement;
(ee) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(o) or replacement of the foregoingSection 11.2(p); provided, however, that, except after giving effect to such Liens (and any Permitted Acquisition consummated in connection therewith, whether prior to or concurrently with such incurrence of such Liens), as of the extent otherwise last day of the most recent four consecutive fiscal quarters with respect to which financial statements shall have been delivered pursuant to Section 10.1, (i) the First Lien Secured Leverage Ratio of the Company and its Subsidiaries shall be less than or equal to 4:00 to 1:00 on a pro forma basis and (ii) the Company’s Senior Secured Leverage Ratio, calculated on a pro forma basis, is less than 5.5 to 1.0; and
(ff) additional Liens securing obligations which, together with all other obligations secured by Liens (excluding Liens permitted by this Section 5.5 clauses (including Section 5.5(n)), a) through (ee) above) at the Liens permitted under this paragraph shall time of determination do not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent value)exceed $15,000,000.
Appears in 1 contract
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp)
Limitation on Liens. Infinity The Borrower will not, and nor will not it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept:
(a) Liens created pursuant to the Security Documents;
(b) Liens imposed by any Governmental Authority governmental authority for taxes, assessments or charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Borrower or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(bc) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) proceedings and Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, extent for an amount and for a period not resulting in an Event of Default under paragraph (hSection 10(h) of Article VIhereof;
(d) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;; Credit Agreement
(e) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of Infinity and the Borrower or any of its Subsidiaries taken as a wholeSubsidiaries;
(g) Liens on Property rights of any Subsidiary tenants, as tenants only, under leases of Infinity real property acquired as part of the River City Non- License Acquisition, which rights do not materially detract from the value of the real property subject thereto or interfere with the ordinary conduct of any Person which is or was merged with or into Infinity the business of the Borrower 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 transactionits Subsidiaries performed thereon;
(h) Liens upon real and/or personal property on the capital stock of Glencairn owned by Carolyn C. Smith acquired (by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity the Borrower or any of its Subsidiaries, each of which Liens either (A) existed on such Property before o▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇uant to 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, all or a part exercise of the cost (including Glencairn Options, to the cost of construction) extent such Liens are in existence on the date 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 thereonacquisition;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 propertyProperty created after the date hereof, and additional Sale/Leasebacks; provided, provided that the sum of (i) aggregate Indebtedness secured thereby and incurred on and after 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 date hereof shall not exceed $125,000,000 5,000,000 in the aggregate at any one time outstanding; and
(oj) 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)), that the Liens permitted under this paragraph hereunder shall not be spread to cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent valueProperty).
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (Sinclair Broadcast Group Inc)
Limitation on Liens. Infinity will Holdings and the Parent Borrower shall not, and will shall not permit any of its Material Subsidiaries Restricted Subsidiary to, createdirectly or indirectly, incur, assume create or suffer permit to exist any Lien upon on any of its Property, property or enter into any Sale/Leaseback with respect to any such Propertyassets, whether now owned or hereafter acquired; provided, that securing any Indebtedness, except for the foregoing restrictions shall not apply tofollowing Liens:
(a) Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges not yet due delinquent or the nonpayment of which would not reasonably be expected to have a Material Adverse Effect on Holdings and payable its Restricted Subsidiaries or which that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of Holdings or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) Liens with respect to outstanding motor vehicle fines and carriers'’, warehousemen's’s, mechanics'’, landlords’, materialmen's’s, repairmen's, architects' ’s or other like Liens arising in the ordinary course of business which in respect of obligations that are not overdue for a period of more than 30 60 days or which that are bonded or that are being contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's connection with workers’ compensation, unemployment insurance and other social security legislationand other similar legislation or other insurance related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(ed) pledges pledges, deposits or deposits Liens to secure the performance of bids, trade tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations to secure obligations, completion guarantees, surety, judgment, appeal or performance bonds and contractual bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) easementseasements (including reciprocal easement agreements), rights-of-way, restrictions building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances incurred or title defects incurred, or leases or subleases granted to others, in the ordinary course of business and encumbrances consisting of zoning restrictionsbusiness, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not in the aggregate materially interfere in any material respects with the ordinary conduct of the business of Infinity Holdings and its Subsidiaries Restricted Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Closing Date, which Liens or arrangements are set forth on Schedule 8.2, or (in the case of any such Liens securing Indebtedness of Holdings or any of its Subsidiaries existing or arising under written arrangements existing on the Closing Date) securing any Refinancing Indebtedness in respect of such Indebtedness so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;
(g) Liens on Property of any Subsidiary of Infinity or of any Person which is or was merged with or into Infinity (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which Holdings or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (i) Hedging Obligations or Bank Products Obligations Incurred in compliance with subsection 8.1 or (ii) Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with subsections 8.1(b)(iv); provided, provided that such Liens are do not encumber any property or were assets other than the property or assets financed by such Indebtedness (plus improvements, accessions, proceeds or dividends or distributions in existence respect thereof);
(i) Liens arising out of judgments, decrees, orders or awards in respect of which Holdings or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens existing on property or assets of a Person at the time such Person becomes or became a Subsidiary of Infinity Holdings (or at the time Holdings or a Restricted Subsidiary acquires such Person merged property or assets, including any acquisition by means of a merger or consolidation with or into Infinity Holdings or any Restricted Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (k), if a Person other than Holdings is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of Holdings, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by Holdings or a Restricted Subsidiary, as the case may be, were not created when such Person becomes such Successor Company;
(l) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(m) Liens securing Indebtedness (including Liens securing any obligations in anticipation thereof respect thereof) consisting of (i) Indebtedness Incurred in compliance with subsections 8.1(b)(i)(B) and (C) (other than to finance the purchase thereof Refinancing Indebtedness Incurred in respect of Indebtedness Incurred in compliance with subsection 8.1(a) or subsection 8.1(b)(i)(A)) and are not spread to cover any Property subsections 8.1(b)(vii)(A), 8.1(b)(viii) (other than clause (D) thereof), 8.1(b)(ix) or 8.1(b)(xi) (provided that in the Property covered case of subsection 8.1(b)(ix), such Liens do not encumber any property or assets other than property and assets of Non-Loan Parties), (ii) Indebtedness Incurred in compliance with subsection 8.1(b)(xiv) (it being understood that any Liens on ABL Priority Collateral securing Refinancing Indebtedness Incurred in compliance with subsection 8.1(b)(xiv) shall be junior in priority to the Liens securing the Indebtedness hereunder, which priority shall be effected pursuant to an Intercreditor Agreement (it being understood that any Liens on non-ABL Priority Collateral securing such Refinancing Indebtedness may be senior in priority to the Liens securing the Indebtedness hereunder)); (iii) Indebtedness Incurred in compliance with subsection 8.1(xix), provided that any such Liens on ABL Priority Collateral securing Indebtedness pursuant to subsection 8.1(xix) are junior in priority to the Liens securing the Obligations, which priority may be effected pursuant to the Base Intercreditor Agreement or another Intercreditor Agreement (it being understood that any such Liens on non-ABL Priority Collateral securing Indebtedness pursuant to subsection 8.1(xix) may be senior in priority to the Liens securing the Indebtedness hereunder); (iv) Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor (provided that such Liens encumber only the property and assets of such Restricted Subsidiaries); or (v) Indebtedness or other obligations of any Special Purpose Entity (provided that such Liens encumber only the property and assets of such Special Purpose Entity), in each case under the foregoing clauses (i) through (v) including Liens securing any Guarantee of any thereof;
(n) any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate, provided further that any such Liens on ABL Priority Collateral are junior in priority to the Liens securing the Obligations, which priority shall be effected pursuant to an Intercreditor Agreement (it being understood that any such Liens on non-ABL Priority Collateral may be senior in priority to the Liens securing the Indebtedness hereunder);
(p) Liens (i) arising by operation of law (or by agreement with any Governmental Authority to the same effect) in the ordinary course of business, (ii) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, (iii) on receivables (including related rights) which are being sold pursuant to any Approved Factoring Arrangement, (iv) on cash set aside at the time of the relevant transactionIncurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities pre-fund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, (v) securing or arising by reason of any netting or set-off or customer deposit arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), (vi) in favor of Holdings or any Subsidiary (other than Liens on property or assets of Holdings or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (vii) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (viii) on inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, (ix) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (x) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, (xi) arising in connection with repurchase agreements permitted under subsection 8.1, on assets that are the subject of such repurchase agreements, (xii) in favor of any Special Purpose Entity in connection with any Financing Disposition, or (xiii) in relation to Holdings, constituting a deemed security interest, as described in section 17(1)(b) of the Personal Property Securities Act 1999 (NZ), which does not secure Indebtedness or performance of an obligation;
(h) Liens 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(jq) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings of such receivables and inventory liabilities in an aggregate amount not greater to exceed $25.0 million at any time outstanding;
(r) Liens arising pursuant to an agreement for any sale or other disposition of assets; provided that such Liens do not at any time encumber any assets other than $400,000,000 less the assets to be sold or disposed of and such sale or other disposition is permitted under subsection 8.4; and
(s) Liens securing Indebtedness (including Liens securing any obligations in respect thereof) consisting of (i) Indebtedness Incurred in compliance with subsection 8.1(a); provided that either such Indebtedness is not secured by Liens on the ABL Priority Collateral or any such Liens on the ABL Priority Collateral are junior in priority to the Liens securing the Obligations, which priority shall be effected pursuant to an Intercreditor Agreement (it being understood that any such Liens on non-ABL Priority Collateral may be senior in priority to the Liens securing the Obligations). For purposes of determining compliance with this subsection 8.2, (v) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this subsection 8.2 but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category (other than subsection 8.2(m) in respect of Indebtedness under the ABL Loan Documents)), (w) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Parent Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this subsection 8.2 and (x) if any Liens securing Indebtedness are Incurred to refinance Liens securing Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such Indebtedness secured by such Liens does not exceed the principal amount of such Indebtedness secured by such Liens being refinanced, plus the aggregate amount of Indebtedness that is secured pursuant to clause fees, underwriting discounts, premiums and other costs and expenses (iiincluding accrued and unpaid interest) below; provided, that the terms of such Indebtedness do not provide for any recourse to Infinity Incurred or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or any of its Subsidiaries payable in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) 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 such Property or other Property of equivalent value)refinancing.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its Propertyproperty, assets or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that the foregoing restrictions shall not apply toexcept for:
(a) Liens imposed by any Governmental Authority for taxes, assessments assessments, governmental charges or charges levies (but excluding judgment Liens) not yet due and payable or which are being contested in good faith and by appropriate proceedings if proceedings, provided that adequate reserves with respect thereto are maintainedmaintained on the books of Hanover or any Subsidiary of Hanover, as the case may be, in conformity with GAAP;
(b) carriers'’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' landlord’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 60 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's in connection with workers’ compensation, unemployment insurance and other social security legislationlegislation and deposits securing liability to insurance carriers under insurance or self insurance arrangements;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(fe) immaterial irregularities in title, easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material substantial in amount, amount and which do not interfere in any material respects case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Infinity and Hanover or any of its Subsidiaries taken as a wholeSubsidiaries;
(f) leases or subleases granted to third Persons not interfering in any material respect with the business of Hanover or any of its Subsidiaries;
(g) Liens on Property of any Subsidiary of Infinity arising from UCC financing statements regarding leases permitted by this Agreement 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 transactionEquipment Leases;
(h) Liens upon real and/or personal property acquired (any interest or title of a lessor or sublessor under any lease permitted by purchase, construction, foreclosure, deed in lieu of foreclosure this Agreement or otherwise) by Infinity 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 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 thereonEquipment Leases;
(i) mortgages on Property securing indebtedness Liens in favor of the United States customs and revenue authorities arising as a matter of America or any state thereof or any department, agency or instrumentality or political subdivision law to secure payment of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages custom duties in connection with pollution control, industrial revenue or similar financings) or incurred the importation of goods so long as such Liens attach only to secure progress, advance or other payments pursuant to any contract or provision of any statutethe imported goods;
(j) Liens securing Indebtedness owed to Infinity arising out of consignment or to similar arrangements for the sale of goods entered into by Hanover or any Wholly Owned Subsidiary of Infinityits Subsidiaries in the ordinary course of business;
(k) Liens (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 created pursuant to clause (ii) below; provided, that the terms of such Indebtedness do not provide for any recourse Financing Leases permitted pursuant to Infinity or any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000subsection 8.2(d);
(l) Sale/Leasebacks consummated prior to Liens in existence on the Closing DateDate listed on Schedule 8.3(l), securing Indebtedness permitted by subsection 8.2(c) including any Refinancing Indebtedness incurred in respect thereof;
(m) any Sale/Leaseback of assets of Infinity owned Liens 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) 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 aggregate principal amount acquisition of which were financed with the proceeds of the obligations secured Indebtedness permitted by subsection 8.2(d) and which secures only such Liens (other than Indebtedness as defined in clause (f) Indebtedness, provided that any such Lien is placed upon such natural gas compressor or related equipment or such oil and gas production equipment at the time of the definition thereof which has not been assumed acquisition of such natural gas compressors or related equipment or such oil and gas production equipment by Infinity Hanover or any of its Subsidiaries and where the Lien relates extends to Property acquired no other property, and provided, further, that no such Lien is spread to cover any additional property after the date such Lien attaches and that the amount of Indebtedness secured thereby is not increased;
(n) Liens on the assets of Unqualified Subsidiaries of Hanover securing Permitted Unqualified Subsidiary Indebtedness;
(o) Liens on the property or assets of a Person which becomes a Subsidiary after the date hereof securing Indebtedness permitted by Infinity subsection 8.2(g), 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;
(p) Liens that arise in connection with the Equipment Lease Transactions and Refinancing Indebtedness in respect thereof;
(q) Liens created pursuant to the Security Documents (including Liens securing Derivatives Agreements which are permitted under Section 8.9);
(r) Liens securing Indebtedness of HCLP or any other Subsidiary incurred pursuant to Section 8.2(m) 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, and (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness;
(s) judgment Liens against Hanover or any of its Subsidiaries which do not result in satisfaction, in whole or in part, a Default under clause (i) 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 outstanding9; and
(ot) any extension, renewal or replacement of the foregoing; provided, however, that, except to the extent Liens not otherwise permitted by this Section 5.5 (including Section 5.5(n)), hereunder securing Indebtedness not exceeding $2,500,000 in 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 such Property or other Property of equivalent value)aggregate.
Appears in 1 contract
Limitation on Liens. Infinity will not, and will not permit any of its Material Subsidiaries to, createCreate, incur, assume assume, or suffer permit to exist any Lien upon on any property or assets (including Equity Interests of any Borrower or any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether a Borrower) now owned or hereafter acquired; providedacquired by it or on any income or rights in respect of any thereof, that the foregoing restrictions shall not apply toexcept:
(a) Liens created pursuant to or arising under any Loan Document;
(b) Liens imposed by any Governmental Authority law for taxes, assessments assessments, or governmental charges not yet due and payable or which are being contested in good faith and by appropriate proceedings diligently conducted if adequate reserves with respect thereto are maintainedmaintained in accordance with GAAP on the books of the applicable Person;
(bc) carriers'Carriers’, warehousemen's’s, mechanics'’, materialmen's’s, repairmen's’s, architects' or and other like similar Liens imposed by law, arising in the ordinary course of business which business, and securing obligations that are not overdue for a period of by more than 30 90 days or which that 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VIproceedings diligently conducted;
(d) pledges Liens arising solely by virtue of any statutory or deposits under worker's compensation, unemployment insurance and other social security legislationcommon law provision relating to banker’s liens rights or set-off or similar rights;
(e) pledges 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 deposits regulations and (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty, or liability insurance to a Borrower or another Borrower;
(f) Liens (including deposits) to secure the performance of bids, tenders, trade contracts (other than for borrowed money)contracts, leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual bonds, and other obligations of a like nature incurred nature, in each case in the ordinary course of business and not involving the borrowing of moneybusiness;
(fg) easementsEasements, zoning restrictions, rights-of-way, restrictions minor defects or irregularities in title, and other similar encumbrances incurred on real property imposed by law or arising in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, amount and which do not materially detract from the value of the affected property or interfere in any material respects materially with the ordinary conduct of the business of Infinity 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 Borrower 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 transactionits Subsidiaries;
(h) Liens upon real and/or personal property acquired (by purchaseon fixed or capital assets acquired, 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 time of its acquisition and was not created in anticipation thereof or (B) was created solely for the purpose of securing Indebtedness representingconstructed, or improved by any Borrower after the date hereof; provided that (i) such security interests secure Debt permitted by Section 7.01(c), (ii) such Liens and the Debt secured thereby are incurred prior to financeor within 180 days of such acquisition or the completion of such construction or improvement, refinance (iii) such Liens shall not apply to any other property or refundassets of any Borrower, all or a part and (iv) the amount of Debt initially secured thereby is not more than 100% of the cost (including the purchase price or construction or improvement cost of construction) of such Property fixed 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 thereoncapital asset;
(i) mortgages on Property securing indebtedness Liens in favor existence as of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 any Material Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on the Closing Date and date hereof which are listed on Schedule 5.5(m7.02(i);
(n) additional Liens upon real and/or personal property, securing Debt permitted by Section 7.01(d), and additional Sale/Leasebacksany renewals, modifications, replacements, and extensions of such Liens; provided, provided that the sum of (i) the aggregate principal amount of the obligations Debt secured by such Liens does not increase from that amount outstanding at the time of any such renewal, modification, replacement, or extension and (other than Indebtedness as defined ii) any such renewal, modification, replacement, or extension does not encumber any additional assets or properties of any Borrower;
(j) To the extent such transactions create a Lien thereunder, liens in clause favor of lessors securing operating leases or sale and leaseback transactions, in each case to the extent such operating leases or sale and leaseback transactions are permitted under the terms of this Agreement;
(fk) Any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Lien existing on any property or asset of any Person that becomes a Subsidiary of the definition Borrower at the time such Person becomes a Subsidiary of the Borrower; provided that (i) such Lien is not created in contemplation of, or in connection with, such acquisition or such Person becoming a Borrower, 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 Borrower, as the case may be, and any refinancing, refunding, extension, renewal, or replacement thereof which has that does not been assumed 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;
(l) Judgment or other similar Liens in connection with legal proceedings in an aggregate principal amount up to $500,000 which, whether immediately or with the passage of time (i) do not give rise to an Event of Default under Section 8.01(g) and (ii) are being contested in good faith by Infinity appropriate proceedings diligently conducted;
(m) Liens upon assets of the Borrowers or any of its their Subsidiaries subject to Capital Lease Obligations to the extent such Capital Lease Obligations are permitted by Section 7.01; provided that (i) such Liens only serve to secure the payment of Debt arising under such Capital Lease Obligation and where (ii) the Lien relates encumbering the asset giving rise to Property acquired by Infinity or the Capital Lease Obligation does not encumber any other asset of its Subsidiaries in satisfaction, in whole or in part, of indebtedness to Infinity the Borrower or any of its Subsidiaries;
(n) Liens arising from precautionary Uniform Commercial Code financing statement filings solely as a precautionary measure in connection with operating leases or consignment of goods;
(o) non-exclusive licenses of patents, trademarks and other intellectual property rights granted by any Loan Parties in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of the Loan Parties; and
(any such Indebtedness, "Specified p) Any other Liens on property not otherwise permitted by this Section 5.5(n7.02 so long as neither (i) Indebtedness")) the aggregate principal amount of the Debt and other obligations secured thereby nor (ii) the aggregate Sale/Leaseback Attributable Debt with respect to fair market value (determined as of the date such Sale/Leasebacks shall not exceed Lien is incurred) of the assets subject thereto exceeds $125,000,000 500,000 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 such Property or other Property of equivalent value).
Appears in 1 contract
Limitation on Liens. Infinity (a) The Obligors will not, and will not permit any of its Material their respective Restricted Subsidiaries to, create, create or incur, assume or suffer to exist be incurred or to exist, any Lien upon any of on its Property, or enter into any Sale/Leaseback with respect to any such Propertytheir property or assets, whether now owned or hereafter acquired; provided, that or upon any income or profits therefrom, or transfer any property for the foregoing restrictions shall not apply topurpose 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 imposed by any Governmental Authority for taxes, 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 yet due and payable at the time required by Section 9.4;
(2) Liens of or resulting from any litigation or legal proceeding which are currently being contested in good faith and by appropriate proceedings if and for which the Obligors or the relevant Restricted Subsidiary shall have set aside on its books, reserves deemed by it to be adequate reserves with respect thereto are maintainedthereto, unless the judgment they secure shall not have been stayed, bonded or discharged within 60 days;
(b3) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' or other like Liens arising in incidental to the ordinary course conduct of business which are not overdue for a period or the ownership of more than 30 days or which are being contested properties and assets (including Liens 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 extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under connection with worker's compensation, unemployment insurance and other social security legislation;
(elike laws, warehousemen's and attorneys' liens and statutory landlords' liens) pledges or deposits and Liens to secure the performance of bids, tenders or trade contracts (other than for borrowed money)contracts, leases, statutory obligations or to secure suretystatutory obligations, surety or appeal bonds or performance bonds and contractual and other obligations Liens of a like nature general nature, in any such case incurred in the ordinary course of business and not involving in connection with the borrowing of money, which in any such case would not materially and adversely affect the properties, business, prospects, profits or condition (financial or otherwise) of the Obligors and their Restricted Subsidiaries, provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings;
(f4) easementsminor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, restrictions utilities and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of purposes, or zoning restrictions, easements, licenses, or other restrictions on as to the use of Property real properties, which are necessary for the conduct of the activities of the Obligors and their Restricted Subsidiaries or minor imperfections which customarily exist on properties of corporations engaged in title thereto similar activities and Liens under leases and subleases which, in the aggregate, are not material in amount, similarly situated and which do not interfere in any material respects with event materially impair their use in the ordinary conduct operation of the business of Infinity the Obligors and its Subsidiaries taken as a wholetheir Restricted Subsidiaries;
(g5) Liens on Property securing Indebtedness of any a Restricted Subsidiary to an Obligor in respect of which such Restricted Subsidiary is a Restricted Subsidiary of Infinity such Obligor or to another Wholly-owned Restricted Subsidiary of such Obligor;
(6) Liens existing as of the date of 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 the acquisition or purchase of real or personal property or the cost of construction or improvements to real or personal property, in any Person which is or was merged with or into Infinity such case, useful and intended to be used in carrying on the business of an Obligor or any Subsidiary thereof; providedof its respective Restricted Subsidiaries, provided that (i) the Lien shall attach solely to the real or personal property acquired, purchased, constructed or improved, (ii) such Liens are Lien shall have been created or were in existence at incurred within 270 days after the time date of acquisition or purchase or the date of completion of construction or improvement of such Person becomes real or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereofpersonal property, 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 (iii) at the time of the relevant transaction;
imposition of the Lien, the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such real or personal property, as the case may be (h) Liens upon real and/or personal property acquired (whether or not assumed by purchase, construction, foreclosure, deed in lieu of foreclosure or otherwise) by Infinity 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, each as the case may be, or fair market value of which such real or personal property (as determined in good faith by the Board of Directors of such Obligor);
(8) Liens either affixed on real or personal property (Aincluding without limitation outstanding shares of capital stock and Indebtedness) existed on of any entity at the time such Property before entity becomes a Restricted Subsidiary given 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 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 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, all or a part of the cost (including the cost of construction) purchase of such Property Restricted Subsidiary, the aggregate amount of Indebtedness secured by Liens on such real or improvements thereon; provided, that no personal property (whether or not assumed by such Lien shall extend to or cover any Property of Infinity Obligor or such Subsidiary other than Restricted Subsidiary) shall not exceed an amount equal to the respective Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part lesser of the purchase price or fair market value of such real property or such personal property (as determined in good faith by the cost Board of construction Directors of the Property subject to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statuteObligor);
(j9) Liens securing Indebtedness owed to Infinity affixed on real or to any Wholly Owned Subsidiary of Infinity;
(k) Liens personal property existing (i) upon at the receivables and inventory time of Infinity acquisition thereof, whether or not the Indebtedness secured thereby is assumed by an Obligor or any of its Subsidiaries respective such Restricted Subsidiaries, or (ii) on the property or outstanding shares of a corporation at the time such corporation is merged into or consolidated with such Obligor or such Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties or outstanding shares or Indebtedness of a corporation or firm as an entirety to secure Indebtedness resulting from financings of such receivables and inventory in an aggregate amount not greater than $400,000,000 less Obligor or such Restricted Subsidiary; provided that the aggregate amount of Indebtedness that is secured pursuant by such Liens shall not exceed an amount equal to clause (ii) below; provided, that the terms lesser of the acquisition or purchase price or fair market value of such Indebtedness do not provide for any recourse to Infinity real or any Material Subsidiary personal property (except to as determined in good faith by the extent Board of breaches Directors of representations and warranties such Obligor);
(10) Liens created or incurred after the date of Infinity or 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 Closing given to secure Indebtedness of Infinity an Obligor or Indebtedness of any of its respective Restricted Subsidiaries in an aggregate amount not greater than $125,000,000;addition to the Liens permitted by the preceding clauses (1) through (9) hereof, provided that all Indebtedness secured by such new Liens incurred after the date of the Closing shall have been incurred within the limitations provided in Section 10.4(a)(5); and
(l11) Sale/Leasebacks consummated prior any extension, renewal or refunding of any Lien permitted by the preceding clauses (5) through (10) of this Section 10.5 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 (1) 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, (2) such Lien shall attach solely 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 same such property, and additional Sale/Leasebacks; provided(3) the principal amount remaining unpaid as of the date of such 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 sum Obligors will make or cause to be made provision whereby the Notes will be secured equally and ratably with all other obligations secured thereby and concurrently therewith the Obligors shall furnish to the holders of (i) the Notes documentation reasonably satisfactory to the holders of at least 66-2/3% of the aggregate principal amount of the obligations secured by Notes at the time outstanding, including, but not limited to, an opinion of independent counsel to such Liens (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 than Indebtedness as defined obligations, the Notes shall in clause (f) of any event have the definition thereof which has not been assumed by Infinity or any of its Subsidiaries benefit, to the full extent that, and where with such priority as, the Lien relates to Property acquired by Infinity or any of its Subsidiaries in satisfaction, in whole or in partholders may be entitled thereto under applicable law, of indebtedness to Infinity or any of its Subsidiaries, in an equitable Lien securing 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 Notes on such Property property, asset, income or other Property of equivalent value)profit.
Appears in 1 contract
Limitation on Liens. Infinity The Company will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Propertytheir properties, assets (including shares of Capital Stock) or enter into any Sale/Leaseback with respect to any such Propertyrevenues, whether now owned or hereafter acquired; provided, that except for the foregoing restrictions shall not apply to:following (collectively, "Permitted Exceptions"):
(a) Liens imposed by any Governmental Authority for taxes, assessments or charges taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintainedmaintained on the books of the Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's', mechanics', materialmen's', repairmen's, architects' 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) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under workerin connection with workmen's compensation, unemployment insurance and other social security legislation;
(ed) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), government contracts, leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual 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 and not involving the borrowing of moneybusiness;
(fe) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and the Company or any of its Subsidiaries;
(f) Liens in favor of the United States for amounts paid by the Company or any of its Subsidiaries taken as a wholeprogress payments under government contracts entered into by them;
(g) attachment, judgment or other similar Liens on Property arising in connection with 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 case of any Subsidiary of Infinity execution or of any Person enforcement pending appeal) such lesser time during 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 appeal 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 transactionbe taken;
(h) Liens upon real and/or personal property acquired (by purchase, construction, foreclosure, deed granted in lieu the ordinary course of foreclosure or otherwise) by Infinity business of the Company or any of its Subsidiaries, each Subsidiaries in favor of which Liens either (A) existed on such Property before the time issuers of its acquisition and was not created in anticipation thereof documentary or (B) was created solely trade letters of credit for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, all or a part account 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 Company or such Subsidiary other than which support the respective Property so 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 assets acquired or shipped with the support of such letter of credit and improvements thereon(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) mortgages on Property securing indebtedness possessory Liens in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject to such mortgages (including without limitation such debt secured by such mortgages brokers and dealers arising in connection with pollution control, industrial revenue the acquisition or similar financingsdisposition of investments of the type permitted by subsection 8.7(a)(ii); provided that such Liens (i) attach only to such investments and (ii) secure only obligations incurred in the ordinary course and arising in connection with the acquisition or incurred to secure progress, advance or other payments pursuant to disposition of such investments and not any contract or provision of any statuteobligation in connection with margin financing;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinityset forth in Schedule 8.2(j);
(k) Liens (i) upon on the receivables and inventory assets of Infinity or any of its Subsidiaries to secure Indebtedness resulting from financings Foreign Subsidiary securing obligations 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 any Material Foreign Subsidiary (except to the extent of breaches of representations and warranties of Infinity or 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 secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000permitted hereunder;
(l) Sale/Leasebacks consummated prior 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 Closing Datepurchase 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) any Sale/Leaseback of Liens on the property or assets of Infinity owned on a corporation which becomes a Subsidiary after the Closing Date and listed on Schedule 5.5(mdate hereof securing Indebtedness of such Subsidiary permitted by subsection 8.11(f) or Contingent Obligations permitted by subsection 8.3(d);
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, provided that the sum of (i) the aggregate principal amount of the obligations secured by such Liens (other than and Indebtedness as defined or Contingent Obligations existed at the time such corporation became a Subsidiary and were not created 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 satisfactionanticipation thereof, 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) any such Lien is not spread to cover any other property or assets of such corporation after the aggregate Sale/Leaseback Attributable Debt with respect 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 Sale/Leasebacks corporation, no Default or Event of Default shall not exceed $125,000,000 at any one time outstandinghave occurred and be continuing; and
(on) 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)), provided that the Liens permitted under by this paragraph shall not be spread extend to or cover any additional Indebtedness or Property (other than a substitution of like Property or improvements on such Property or other Property of equivalent valueProperty).
Appears in 1 contract
Limitation on Liens. Infinity Neither the Borrower nor any Subsidiary will not, and will not permit any of its Material Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon any of its Property, or enter into any Sale/Leaseback with respect to any such Property, whether of its properties or assets now owned or hereafter acquired; provided, that except the foregoing restrictions shall not apply to:following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):
(a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;
(b) Liens imposed by any Governmental Authority for taxesTaxes, assessments or charges not yet due and payable delinquent or the validity of which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, architects' 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 is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the books of the Borrower or any Subsidiary in accordance with GAAP;
(c) Liens securing judgments or to perfect an appeal of any order or decree but only to the extent, for an amount and for a period not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits of cash or securities under worker's ’s compensation, unemployment insurance and or 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 the Borrower or any Subsidiary 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 the Borrower or any Subsidiary in accordance with GAAP;
(e) pledges deposits of cash or deposits securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations to secure suretyobligations, surety and appeal or bonds, performance bonds and contractual and other obligations of a like nature incurred in the ordinary course of business and not involving the borrowing of moneybusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Property real property or minor imperfections in title thereto and Liens under leases and subleases which, in the aggregate, are not material in amount, and which do not interfere in any material respects case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of Infinity and its Subsidiaries taken as a wholethe Borrower or any Subsidiary;
(g) Liens on Property rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
(h) rights reserved to or vested by Law in any Governmental Authority to in any manner, control or regulate in any manner any of the properties of the Borrower or any Subsidiary or the use thereof or the rights and interests of Infinity the Borrower or any Subsidiary therein, in any manner under any and all Laws;
(i) rights reserved to the grantors of any properties of the Borrower or any Subsidiary, 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) Liens securing Indebtedness permitted by Section 7.01(e) or other obligations of any Person which that becomes a Subsidiary after the date hereof; provided that (i) such Lien is not created in contemplation of or was merged in connection with such acquisition or into Infinity such Person becoming a Subsidiary, (ii) such Lien shall not apply to any other property of the Borrower or any Subsidiary thereof; provided, that and (iii) such Liens are Lien shall secure only those obligations which it secures on the date of such acquisition or were in existence at the time date such Person becomes or became a Subsidiary of Infinity or such Person merged with or into Infinity or any Subsidiary thereofSubsidiary, as the case may be, were not created in anticipation thereof other than and Indebtedness refinancing such obligations (but no increase 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 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 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, 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) mortgages on Property securing indebtedness in favor of the United States of America or any state thereof or any department, agency or instrumentality or political subdivision of the United States of America or any state principal amount thereof, incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the Property subject except by an amount equal to such mortgages (including without limitation such debt secured by such mortgages in connection with pollution control, industrial revenue or similar financings) or incurred to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly Owned Subsidiary of Infinity;
(k) Liens (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 amounts paid for any recourse to Infinity or any Material Subsidiary (except to the extent of breaches of representations accrued interest, breakage, premium, fees and warranties of Infinity or any of its Subsidiaries expenses in connection with such financings and other recourse customary in connection with "off-balance sheet" financings) and (ii) upon the Property of Infinity to secure Indebtedness of Infinity in an aggregate amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Daterefinancing);
(m) any Sale/Leaseback of assets of Infinity owned Liens on the Closing Date and listed on Schedule 5.5(m)cash margin collateral or securities securing Hedging Contracts;
(n) additional Liens upon real and/or personal property, and additional Sale/Leasebacks; provided, that in respect of operating leases covering only the sum property subject thereto;
(o) Liens on Equity Interests of Unrestricted Subsidiaries or joint ventures securing Indebtedness of such Unrestricted Subsidiary or joint venture;
(ip) 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 outstandingsecuring Obligations; and
(oq) any extension, renewal or replacement Liens in respect 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 such Property or other Property of equivalent value)Permitted Priority Debt.
Appears in 1 contract