Creation of Liens. No Loan Party shall, nor shall any of its Restricted Subsidiaries, create or suffer to exist any Lien or transfer upon or against any of its property or assets now owned or hereafter created or acquired, except for (“Permitted Liens”): (a) Liens securing the Obligations created pursuant to the Other Documents; (b) Liens for Taxes which are (i) not then due, (ii) if due, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contested; (c) statutory Liens (and rights of set-off) of landlords, banks, carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the Ordinary Course of Business (i) for amounts not yet overdue by more than 30 days, (ii) for amounts that are overdue by more than 30 days and that are being Properly Contested or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect; (d) Liens incurred (i) in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other types of social security laws and regulations, (ii) in the Ordinary Course of Business to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal 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), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii) above; (e) Liens consisting of easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not, in the aggregate, materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole, or the use of the affected property for its intended purpose; (f) Liens consisting of any (i) interest or title of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii); (g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder; (h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into in the Ordinary Course of Business; (i) 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; (j) Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate the use of any or dimensions of real property or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order; (k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement; (l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6; (m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates); (n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests; (i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary in the Ordinary Course of Business and (D) commodity trading or other brokerage accounts incurred in the Ordinary Course of Business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts and (iv) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction; (p) 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 of Holdings and/or its Restricted Subsidiaries; (q) [reserved]; (r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement; (s) other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 and (ii) seven and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is junior to the Lien securing the Obligations and is subject to an Acceptable Intercreditor Agreement; (t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating to litigation being contested in good faith not constituting an Event of Default under Section 10.6; (u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness; (v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction; (w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t); (x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction); (y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6; (z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; (aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods; (bb) Liens that secure Indebtedness permitted under Section 7.6(w); (cc) (i) Liens on Equity Interests of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries; (dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness; (ee) Liens securing Indebtedness incurred in reliance on, and subject to the provisions set forth in, Section 7.6(q); provided, that (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (ii) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement; (ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n); and (gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Daseke, Inc.)
Creation of Liens. No Loan Party shallEach Borrower will not, nor shall and will not permit any of its Restricted SubsidiariesSubsidiaries to, create directly or indirectly, create, incur, assume or suffer to exist any Lien or transfer upon or against any of its property or assets of any kind (real or personal, tangible or intangible) of any such Person (including its Equity Interests), whether now owned or hereafter created or acquired, except for the following (collectively, the “Permitted LiensEncumbrances”):
(a) Liens securing payment of the Obligations created pursuant to the Other DocumentsObligations;
(b) Liens for Taxes which are identified in Schedule 7.2 hereof, including replacements, extensions, modifications or renewals of such Liens on the property subject to such Liens on the Closing Date; provided, that such replaced, extended or modified Lien does not extend to any additional property other than (i) not then due, after acquired property that is affixed or incorporated into the property covered by such Lien and (ii) if due, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contestedproceeds and products thereof;
(c) statutory Liens securing Indebtedness of the type permitted under Section 7.8(d) hereof; provided, that (i) such Lien is granted within ninety (90) days after such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the lesser of the cost and rights the fair market value of set-offthe applicable property, improvements or equipment at the time of such acquisition (or construction) and (iii) such Lien secures only the assets that are the subject of landlords, banks, the Indebtedness referred to in such clause;
(d) Liens arising by operation of law in favor of carriers, warehousemen, mechanics, materialmen, repairmen, workmen contractors, subcontractors, suppliers and materialmenlandlords, Liens in respect of taxes, and other Liens imposed by applicable Requirements of Lawsimilar Liens, in each case case, incurred in the Ordinary Course of Business for amounts (i) for amounts not yet overdue by more than 30 daysor who have been bonded or filed or signed lien waivers for all payments due, (ii) which remain payable without penalty for amounts that are overdue by more a period not greater than 30 one hundred eighty (180) days and that are being Properly Contested or (iii) which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with respect to which the failure to make payment could not reasonably be expected to GAAP shall have a Material Adverse Effectbeen established on its books;
(de) Liens incurred (i) or pledges or deposits made in the Ordinary Course of Business in connection with workers’ worker’s compensation, unemployment insurance and or other types forms of social security laws and regulationsgovernmental insurance or benefits, (ii) in the Ordinary Course of Business or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and leases or other similar obligations (exclusive of obligations other than for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents entered into in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of crediton surety, bank guarantiesstay, surety customs, appeal or performance bonds;
(f) judgment Liens, performance bonds judicial attachments or similar instruments posted with respect to the items described Liens which do not otherwise result in clauses an Event of Default under Section 10.6 hereof that (i) through are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books to the extent that such Liens are being diligently protested by appropriate means or (iiiii) abovehave not been discharged within thirty (30) days after the filing thereof;
(eg) Liens consisting of easements, encroachments, protrusions, covenants, equitable servitudes, rights-of-way, land use, zoning restrictions, encroachments, and other minor defects or irregularities in title, title and other similar encumbrances not interfering in each case any material manner with the value or use of the property to which do not, such Lien is attached and in the aggregatecase of any real property, materially interfere encumbrances disclosed in the title insurance policy issued to the Agent;
(h) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent, or that are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books;
(i) Liens arising in the Ordinary Course of Business and consistent with past practice by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary and Liens deemed to exist in connection with investments in repurchase agreements constituting Cash Equivalents;
(j) any interest or title of a lessor, licensor or sublessor under any lease (including any ground lease), license or sublease entered into by any such Borrower or Subsidiary in the ordinary conduct course of its business and covering only the assets so leased, licensed or subleased;
(k) licenses, sublicenses, leases or subleases with respect to any asset granted to any Persons in the Ordinary Course of Business; provided, that the same do not materially and adversely affect the business of Holdings and its Restricted the Borrowers or their Subsidiaries or materially detract from the value of the assets of the Borrowers or their Subsidiaries, taken as a whole, or the use of the affected property secure any Indebtedness for its intended purposeborrowed money;
(fl) Liens consisting deposits (including letters of any credit) to secure the performance of bids, government contracts, trade contracts and leases (i) interest other than Indebtedness), statutory obligations, utilities, surety bonds (other than bonds related to judgments or title litigation), performance bonds and other obligations of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;
(h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into like nature incurred in the Ordinary Course of Business;
(im) Liens which arise under Article 4 of the Uniform Commercial Code in any applicable jurisdictions on items in collection and documents and proceeds related thereto;
(n) [reserved];
(o) customary Liens granted on the Equity Interests of any Subsidiary that is not a Borrower to the stockholders of such Subsidiary pursuant to the organizational documents of such Subsidiary;
(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment payments of customs duties in connection with the importation of goods;
(jq) Liens in connection with any zoning, building the purchase or similar Requirement shipping of Law goods or right reserved to assets on the related goods or vested assets and proceeds thereof in any Governmental Authority to control favor of the seller or regulate the use shipper of any such goods or dimensions of real property assets or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing customary reservations or retentions of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary title arising in the Ordinary Course of Business and consistent with past practice and in any case not securing Indebtedness;
(Dr) commodity trading Liens attaching to xxxx xxxxxxx money deposits in connection with any letter of intent or other brokerage accounts incurred purchase agreement in respect of a purchase that would reasonably be expected to result in a Permitted Acquisition or Investment permitted hereunder;
(s) Liens arising by virtue of deposits made in the Ordinary Course of BusinessBusiness or on insurance policies and the proceeds thereof to secure liability for premiums to insurance carriers, including liens on unearned insurance premiums securing the financing thereof;
(t) Liens consisting of contractual obligations of any Borrower to consummate a Disposition that is permitted under Section 7.1(b) hereof to the extent such Liens do not secure monetary obligations of the Borrowers to applicable purchaser and escrow arrangements with respect to such Dispositions, and Liens arising out of consignment, conditional sale, title retention or similar arrangements for the sale of goods in the Ordinary Course of Business and consistent with past practice to the extent such Liens attach solely to the goods subject to such consignment, conditional sale, title retention or similar arrangement;
(u) restrictions in joint venture agreements on the applicable joint venture granting Liens on its assets or the equity interests of such joint venture;
(v) Liens on property or assets of a Person (other than any Equity Interests of any Person) existing at the time such assets of such Person are acquired or such Person is merged into or consolidated with the Borrowers or any of their Subsidiaries or becomes a Subsidiary of the any Borrower; provided, that such Lien is not in the nature of a “blanket” or “all assets” Lien and was not created in contemplation of such acquisition, merger, consolidation or investment, and does not extend to any assets other than those acquired, merged or consolidated by the Borrowers; provided further that any Indebtedness or other obligations secured by such Liens shall otherwise be permitted under Section 7.8(p) hereof;
(w) Liens on (i) cash collateral accounts securing liabilities in respect of credit card facilities or merchant accounts, commodities accounts or brokerage accounts in the Ordinary Course of Business and consistent with past practice and (ii) Liens encumbering reasonable customary initial deposits and margin deposits, securities that are the subject of permitted repurchase agreements constituting Cash Equivalents;
(iii) bankers Liens and rights and remedies as to Deposit Accounts and (ivx) Liens on the proceeds of any Indebtedness incurred escrow accounts in connection with any transaction Permitted Acquisitions or Dispositions otherwise permitted hereunder to the extent such escrow arrangement is also permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
(py) Liens securing obligations on cash in favor of credit card processors in the Ordinary Course of Business and consistent with past practice;
(z) restrictions on cash or other than obligations representing Indebtedness for borrowed money) deposits or net worth imposed by customers under operating, reciprocal easement or similar agreements contracts entered into in the Ordinary Course of Business of Holdings and/or its Restricted Subsidiariesand consistent with past practice or that arise in connection with cash or other deposits permitted under this Section 7.2 and Section 7.4 hereof and limited to such cash or deposit;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(saa) other Liens on assets securing liabilities or Indebtedness or other obligations permitted under this Agreement in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 25,000,000, at any time outstanding; provided that such liens shall not be secured by cash and (ii) seven Cash Equivalents, shall not be secured by property other than Collateral and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is shall rank junior to the Lien Liens securing the Obligations and is subject Obligations, pursuant to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating intercreditor agreement acceptable to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goodsAgent;
(bb) Liens that on cash collateral used to secure Indebtedness permitted under Section 7.6(w)any judgment appeal in an amount and pursuant to procedures, in each case customary for such judgment appeal Liens;
(cc) Liens consisting of customary assignments of insurance or condemnation proceeds provided to landlords (ior their mortgagees) pursuant to the terms of any lease and Liens on Equity Interests and rights reserved in any lease for rent or for compliance with the terms of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons lease; and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred in reliance onunder Sections 7.8(q), and subject 7.8(s), 7.8(u), 7.8(x) (to the provisions set forth inextent constituting applicable Other Real Estate Priority Collateral), Section 7.6(q); provided, that 7.8(y) (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (iiextent constituting applicable Other Real Estate Priority Collateral) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n7.8(w); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Creation of Liens. No Loan Party shallEach Borrower will not, nor shall and will not permit any of its Restricted SubsidiariesSubsidiaries to, create directly or indirectly, create, incur, assume or suffer to exist any Lien or transfer upon or against any of its property or assets of any kind (real or personal, tangible or intangible) of any such Person (including its Equity Interests), whether now owned or hereafter created or acquired, except for the following (collectively, the “Permitted LiensEncumbrances”):
(a) Liens securing payment of the Obligations created pursuant to the Other DocumentsObligations;
(b) Liens for Taxes which are identified in Schedule 7.2 hereof, including replacements, extensions, modifications or renewals of such Liens on the property subject to such Liens on the Closing Date; provided, that such replaced, extended or modified Lien does not extend to any additional property other than (i) not then due, after acquired property that is affixed or incorporated into the property covered by such Lien and (ii) if due, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contestedproceeds and products thereof;
(c) statutory Liens securing Indebtedness of the type permitted under Section 7.8(d) hereof; provided, that (i) such Lien is granted within ninety (90) days after such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the lesser of the cost and rights the fair market value of set-offthecost of the applicable property, improvements or equipment at the time of such acquisition (or construction) and (iii) such Lien secures only the assets that are the subject of landlordsthe Indebtedness referred to in such clause; provided, bankshowever, that the M&T Equipment Debt may also be secured by Liens on any or all of the M&T Priority Collateral so long as such Liens are subject to the Master Mortgagee Agreement;
(d) Liens arising by operation of law in favor of carriers, warehousemen, mechanics, materialmen, repairmen, workmen contractors, subcontractors, suppliers and materialmenlandlords, Liens in respect of taxes, and other Liens imposed by applicable Requirements of Lawsimilar Liens, in each case case, incurred in the Ordinary Course of Business for amounts (i) for amounts not yet overdue by more than 30 daysor who have been bonded or filed or signed lien waivers for all payments due, (ii) which remain payable without penalty for amounts that are overdue by more a period not greater than 30 one hundred eighty (180) days and that are being Properly Contested or (iii) which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with respect to which the failure to make payment could not reasonably be expected to GAAP shall have a Material Adverse Effectbeen established on its books;
(de) Liens incurred (i) or pledges or deposits made in the Ordinary Course of Business in connection with workers’ worker’s compensation, unemployment insurance and or other types forms of social security laws and regulationsgovernmental insurance or benefits, (ii) in the Ordinary Course of Business or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and leases or other similar obligations (exclusive of obligations other than for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents entered into in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of crediton surety, bank guarantiesstay, surety customs, appeal or performance bonds;
(f) judgment Liens, performance bonds judicial attachments or similar instruments posted with respect to the items described Liens which do not otherwise result in clauses an Event of Default under Section 10.6 hereof that (i) through are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books to the extent that such Liens are being diligently protested by appropriate means or (iiiii) abovehave not been discharged within thirty (30) days after the filing thereof;
(eg) Liens consisting of easements, encroachments, protrusions, covenants, equitable servitudes, rights-of-way, land use, zoning restrictions, encroachments, and other minor defects or irregularities in title, title and other similar encumbrances not interfering in each case any material manner with the value or use of the property to which do not, such Lien is attached and in the aggregatecase of any real property, materially interfere encumbrances disclosed in the title insurance policy issued to the Agent;
(h) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent, or that are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books;
(i) Liens arising in the Ordinary Course of Business and consistent with past practice by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary and Liens deemed to exist in connection with investments in repurchase agreements constituting Cash Equivalents;
(j) any interest or title of a lessor, licensor or sublessor under any lease (including any ground lease), license or sublease entered into by any such Borrower or Subsidiary in the ordinary conduct course of its business and covering only the assets so leased, licensed or subleased;
(k) licenses, sublicenses, leases or subleases with respect to any asset granted to any Persons in the Ordinary Course of Business; provided, that the same do not materially and adversely affect the business of Holdings and its Restricted the Borrowers or their Subsidiaries or materially detract from the value of the assets of the Borrowers or their Subsidiaries, taken as a whole, or the use of the affected property secure any Indebtedness for its intended purposeborrowed money;
(fl) Liens consisting deposits (including letters of any credit) to secure the performance of bids, government contracts, trade contracts and leases (i) interest other than Indebtedness), statutory obligations, utilities, surety bonds (other than bonds related to judgments or title litigation), performance bonds and other obligations of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;
(h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into like nature incurred in the Ordinary Course of Business;
(im) Liens which arise under Article 4 of the Uniform Commercial Code in any applicable jurisdictions on items in collection and documents and proceeds related thereto;
(n) [reserved];
(o) customary Liens granted on the Equity Interests of any Subsidiary that is not a Borrower to the stockholders of such Subsidiary pursuant to the organizational documents of such Subsidiary;
(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment payments of customs duties in connection with the importation of goods;
(jq) Liens in connection with any zoning, building the purchase or similar Requirement shipping of Law goods or right reserved to assets on the related goods or vested assets and proceeds thereof in any Governmental Authority to control favor of the seller or regulate the use shipper of any such goods or dimensions of real property assets or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing customary reservations or retentions of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary title arising in the Ordinary Course of Business and consistent with past practice and in any case not securing Indebtedness;
(Dr) commodity trading Liens attaching to xxxx xxxxxxx money deposits in connection with any letter of intent or other brokerage accounts incurred purchase agreement in respect of a purchase that would reasonably be expected to result in a Permitted Acquisition or Investment permitted hereunder;
(s) Liens arising by virtue of deposits made in the Ordinary Course of BusinessBusiness or on insurance policies and the proceeds thereof to secure liability for premiums to insurance carriers, including liens on unearned insurance premiums securing the financing thereof;
(t) Liens consisting of contractual obligations of any Borrower to consummate a Disposition that is permitted under Section 7.1(b) hereof to the extent such Liens do not secure monetary obligations of the Borrowers to applicable purchaser and escrow arrangements with respect to such Dispositions, and Liens arising out of consignment, conditional sale, title retention or similar arrangements for the sale of goods in the Ordinary Course of Business and consistent with past practice to the extent such Liens attach solely to the goods subject to such consignment, conditional sale, title retention or similar arrangement;
(u) restrictions in joint venture agreements on the applicable joint venture granting Liens on its assets or the equity interests of such joint venture;
(v) Liens on property or assets of a Person (other than any Equity Interests of any Person) existing at the time such assets of such Person are acquired or such Person is merged into or consolidated with the Borrowers or any of their Subsidiaries or becomes a Subsidiary of the any Borrower; provided, that such Lien is not in the nature of a “blanket” or “all assets” Lien and was not created in contemplation of such acquisition, merger, consolidation or investment, and does not extend to any assets other than those acquired, merged or consolidated by the Borrowers; provided further that any Indebtedness or other obligations secured by such Liens shall otherwise be permitted under Section 7.8(p) hereof;
(w) Liens on (i) cash collateral accounts securing liabilities in respect of credit card facilities or merchant accounts, commodities accounts or brokerage accounts in the Ordinary Course of Business and consistent with past practice and (ii) Liens encumbering reasonable customary initial deposits and margin deposits, securities that are the subject of permitted repurchase agreements constituting Cash Equivalents;
(iii) bankers Liens and rights and remedies as to Deposit Accounts and (ivx) Liens on the proceeds of any Indebtedness incurred escrow accounts in connection with any transaction Permitted Acquisitions or Dispositions otherwise permitted hereunder to the extent such escrow arrangement is also permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
(py) Liens securing obligations on cash in favor of credit card processors in the Ordinary Course of Business and consistent with past practice;
(z) restrictions on cash or other than obligations representing Indebtedness for borrowed money) deposits or net worth imposed by customers under operating, reciprocal easement or similar agreements contracts entered into in the Ordinary Course of Business of Holdings and/or its Restricted Subsidiariesand consistent with past practice or that arise in connection with cash or other deposits permitted under this Section 7.2 and Section 7.4 hereof and limited to such cash or deposit;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(saa) other Liens on assets securing liabilities or Indebtedness or other obligations permitted under this Agreement in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 25,000,000, at any time outstanding; provided that such liens shall not be secured by cash and (ii) seven Cash Equivalents, shall not be secured by property other than Collateral and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is shall rank junior to the Lien Liens securing the Obligations and is subject Obligations, pursuant to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating intercreditor agreement acceptable to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goodsAgent;
(bb) Liens that on cash collateral used to secure Indebtedness permitted under Section 7.6(w)any judgment appeal in an amount and pursuant to procedures, in each case customary for such judgment appeal Liens;
(cc) Liens consisting of customary assignments of insurance or condemnation proceeds provided to landlords (ior their mortgagees) pursuant to the terms of any lease and Liens on Equity Interests and rights reserved in any lease for rent or for compliance with the terms of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;lease; and
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred under Sections 7.8(q), 7.8(s), 7.8(u) (to the extent constituting M&T Priority Collateral (for the avoidance of doubt, including Liens in reliance on, favor of M&T Bank permitted under Section 7.2(c)) and subject to the provisions set forth inMaster Mortgagee Agreement), 7.8(x) (to the extent constituting applicable Other Real Estate Priority Collateral), Section 7.6(q); provided, that 7.8(y) (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (iiextent constituting applicable Other Real Estate Priority Collateral) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n7.8(w); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Creation of Liens. No Loan Party shallEach Borrower will not, nor shall and will not permit any of its Restricted SubsidiariesSubsidiaries to, create directly or indirectly, create, incur, assume or suffer to exist any Lien or transfer upon or against any of its property or assets of any kind (real or personal, tangible or intangible) of any such Person (including its Equity Interests), whether now owned or hereafter created or acquired, except for the following (collectively, the “Permitted LiensEncumbrances”):
(a) Liens securing payment of the Obligations created pursuant to the Other DocumentsObligations;
(b) Liens for Taxes which are identified in Schedule 7.2 hereof, including replacements, extensions, modifications or renewals of such Liens on the property subject to such Liens on the Closing Date; provided, that such replaced, extended or modified Lien does not extend to any additional property other than (i) not then due, after acquired property that is affixed or incorporated into the property covered by such Lien and (ii) if due, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contestedproceeds and products thereof;
(c) statutory Liens securing Indebtedness of the type permitted under Section 7.8(d) hereof; provided, that (i) such Lien is granted within ninety (90) days after such Indebtedness is incurredthe applicable time period set forth in Section 7.8(d), (ii) the Indebtedness secured thereby does not exceed the cost of the applicable property, improvements or equipment at the time of such acquisition (or construction) and rights (iii) such Lien secures only the assets that are the subject of set-offthe Indebtedness referred to in such clause; provided, however, that the M&T Equipment Debt may also be secured by Liens on any or all of the M&T Priority Collateral so long as such Liens are subject to the Master Mortgagee Agreement;
(d) Liens arising by operation of landlords, banks, law in favor of carriers, warehousemen, mechanics, materialmen, repairmen, workmen contractors, subcontractors, suppliers and materialmenlandlords, Liens in respect of taxes, and other Liens imposed by applicable Requirements of Lawsimilar Liens, in each case case, incurred in the Ordinary Course of Business for amounts (i) for amounts not yet overdue by more than 30 daysor who have been bonded or filed or signed lien waivers for all payments due, (ii) which remain payable without penalty for amounts that are overdue by more a period not greater than 30 one hundred eighty (180) days and that are being Properly Contested or (iii) which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with respect to which the failure to make payment could not reasonably be expected to GAAP shall have a Material Adverse Effectbeen established on its books;
(de) Liens incurred (i) or pledges or deposits made in the Ordinary Course of Business in connection with workers’ worker’s compensation, unemployment insurance and or other types forms of social security laws and regulationsgovernmental insurance or benefits, (ii) in the Ordinary Course of Business or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and leases or other similar obligations (exclusive of obligations other than for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents entered into in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of crediton surety, bank guarantiesstay, surety customs, appeal or performance bonds;
(f) judgment Liens, performance bonds judicial attachments or similar instruments posted with respect to the items described Liens which do not otherwise result in clauses an Event of Default under Section 10.6 hereof that (i) through are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books to the extent that such Liens are being diligently protested by appropriate means or (iiiii) abovehave not been discharged within thirty (30) days after the filing thereof;
(eg) Liens consisting of easements, encroachments, protrusions, covenants, equitable servitudes, rights-of-way, land use, zoning restrictions, encroachments, and other minor defects or irregularities in title, title and other similar encumbrances not interfering in each case any material manner with the value or use of the property to which do not, such Lien is attached and in the aggregatecase of any real property, materially interfere encumbrances disclosed in the title insurance policy issued to the Agent;
(h) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent, or that are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books;
(i) Liens arising in the Ordinary Course of Business and consistent with past practice by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary and Liens deemed to exist in connection with investments in repurchase agreements constituting Cash Equivalents;
(j) any interest or title of a lessor, licensor or sublessor under any lease (including any ground lease), license or sublease entered into by any such Borrower or Subsidiary in the ordinary conduct course of its business and covering only the assets so leased, licensed or subleased;
(k) licenses, sublicenses, leases or subleases with respect to any asset granted to any Persons in the Ordinary Course of Business; provided, that the same do not materially and adversely affect the business of Holdings and its Restricted the Borrowers or their Subsidiaries or materially detract from the value of the assets of the Borrowers or their Subsidiaries, taken as a whole, or the use of the affected property secure any Indebtedness for its intended purposeborrowed money;
(fl) Liens consisting deposits (including letters of any credit) to secure the performance of bids, government contracts, trade contracts and leases (i) interest other than Indebtedness), statutory obligations, utilities, surety bonds (other than bonds related to judgments or title litigation), performance bonds and other obligations of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;
(h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into like nature incurred in the Ordinary Course of Business;
(im) Liens which arise under Article 4 of the Uniform Commercial Code in any applicable jurisdictions on items in collection and documents and proceeds related thereto;
(n) [reserved];
(o) customary Liens granted on the Equity Interests of any Subsidiary that is not a Borrower to the stockholders of such Subsidiary pursuant to the organizational documents of such Subsidiary;
(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment payments of customs duties in connection with the importation of goods;
(jq) Liens in connection with any zoning, building the purchase or similar Requirement shipping of Law goods or right reserved to assets on the related goods or vested assets and proceeds thereof in any Governmental Authority to control favor of the seller or regulate the use shipper of any such goods or dimensions of real property assets or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing customary reservations or retentions of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary title arising in the Ordinary Course of Business and consistent with past practice and in any case not securing Indebtedness;
(Dr) commodity trading Liens attaching to cxxx xxxxxxx money deposits in connection with any letter of intent or other brokerage accounts incurred purchase agreement in respect of a purchase that would reasonably be expected to result in a Permitted Acquisition or Investment permitted hereunder;
(s) Liens arising by virtue of deposits made in the Ordinary Course of BusinessBusiness or on insurance policies and the proceeds thereof to secure liability for premiums to insurance carriers, including liens on unearned insurance premiums securing the financing thereof;
(t) Liens consisting of contractual obligations of any Borrower to consummate a Disposition that is permitted under Section 7.1(b) hereof to the extent such Liens do not secure monetary obligations of the Borrowers to applicable purchaser and escrow arrangements with respect to such Dispositions, and Liens arising out of consignment, conditional sale, title retention or similar arrangements for the sale of goods in the Ordinary Course of Business and consistent with past practice to the extent such Liens attach solely to the goods subject to such consignment, conditional sale, title retention or similar arrangement;
(u) restrictions in joint venture agreements on the applicable joint venture granting Liens on its assets or the equity interests of such joint venture;
(v) Liens on property or assets of a Person (other than any Equity Interests of any Person) existing at the time such assets of such Person are acquired or such Person is merged into or consolidated with the Borrowers or any of their Subsidiaries or becomes a Subsidiary of the any Borrower; provided, that such Lien is not in the nature of a “blanket” or “all assets” Lien and was not created in contemplation of such acquisition, merger, consolidation or investment, and does not extend to any assets other than those acquired, merged or consolidated by the Borrowers; provided further that any Indebtedness or other obligations secured by such Liens shall otherwise be permitted under Section 7.8(p) hereof;
(w) Liens on (i) cash collateral accounts securing liabilities in respect of credit card facilities or merchant accounts, commodities accounts or brokerage accounts in the Ordinary Course of Business and consistent with past practice and (ii) Liens encumbering reasonable customary initial deposits and margin deposits, securities that are the subject of permitted repurchase agreements constituting Cash Equivalents;
(iiix) bankers Liens and rights and remedies as Lxxxx on escrow accounts in connection with Permitted Acquisitions or Dispositions otherwise permitted hereunder to Deposit Accounts and the extent such escrow arrangement is also permitted hereunder;
(ivy) Liens on cash in favor of credit card processors in the proceeds Ordinary Course of any Indebtedness incurred in connection Business and consistent with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transactionpast practice;
(pz) Liens securing obligations (restrictions on cash or other than obligations representing Indebtedness for borrowed money) deposits or net worth imposed by customers, suppliers, or landlords under operating, reciprocal easement or similar agreements contracts entered into in the Ordinary Course of Business of Holdings and/or its Restricted Subsidiariesand consistent with past practice or that arise in connection with cash or other deposits permitted under this Section 7.2 and Section 7.4 hereof and limited to such cash or deposit;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(saa) other Liens on assets securing liabilities or Indebtedness or other obligations permitted under this Agreement in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 25,000,000, at any time outstanding; provided that such liens shall not be secured by cash and (ii) seven Cash Equivalents, shall not be secured by property other than Collateral and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is shall rank junior to the Lien Liens securing the Obligations and is subject Obligations, pursuant to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating intercreditor agreement acceptable to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goodsAgent;
(bb) Liens that on cash collateral used to secure Indebtedness permitted under Section 7.6(w)any judgment appeal in an amount and pursuant to procedures, in each case customary for such judgment appeal Liens;
(cc) Liens consisting of customary assignments of insurance or condemnation proceeds provided to landlords (ior their mortgagees) pursuant to the terms of any lease and Liens on Equity Interests and rights reserved in any lease for rent or for compliance with the terms of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;lease; and
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred under Sections 7.8(q), 7.8(s), 7.8(u) (to the extent constituting M&T Priority Collateral (for the avoidance of doubt, including Liens in reliance on, favor of M&T Bank permitted under Section 7.2(c)) and subject to the provisions set forth inMaster Mortgagee Agreement), 7.8(x) (to the extent constituting applicable Other Real Estate Priority Collateral), Section 7.6(q); provided, that 7.8(y) (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (iiextent constituting applicable Other Real Estate Priority Collateral) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n7.8(w); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Creation of Liens. No Loan Party shallEach Borrower will not, nor shall and will not permit any of its Restricted SubsidiariesSubsidiaries to, create directly or indirectly, create, incur, assume or suffer to exist any Lien or transfer upon or against any of its property or assets of any kind (real or personal, tangible or intangible) of any such Person (including its Equity Interests), whether now owned or hereafter created or acquired, except for the following (collectively, the “Permitted LiensEncumbrances”):
(a) Liens securing payment of the Obligations created pursuant to the Other DocumentsObligations;
(b) Liens for Taxes which are identified in Schedule 7.2 hereof, including replacements, extensions, modifications or renewals of such Liens on the property subject to such Liens on the Closing Date; provided, that such replaced, extended or modified Lien does not extend to any additional property other than (i) not then due, after acquired property that is affixed or incorporated into the property covered by such Lien and (ii) if due, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contestedproceeds and products thereof;
(c) statutory Liens securing Indebtedness of the type permitted under Section 7.8(d) hereof; provided, that (i) such Lien is granted within ninety (90) days after such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the cost of the applicable property, improvements or equipment at the time of such acquisition (or construction) and rights (iii) such Lien secures only the assets that are the subject of set-offthe Indebtedness referred to in such clause; provided, however, that the M&T Equipment Debt may also be secured by Liens on any or all of the M&T Priority Collateral so long as such Liens are subject to the Master Mortgagee Agreement;
(d) Liens arising by operation of landlords, banks, law in favor of carriers, warehousemen, mechanics, materialmen, repairmen, workmen contractors, subcontractors, suppliers and materialmenlandlords, Liens in respect of taxes, and other Liens imposed by applicable Requirements of Lawsimilar Liens, in each case case, incurred in the Ordinary Course of Business for amounts (i) for amounts not yet overdue by more than 30 daysor who have been bonded or filed or signed lien waivers for all payments due, (ii) which remain payable without penalty for amounts that are overdue by more a period not greater than 30 one hundred eighty (180) days and that are being Properly Contested or (iii) which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with respect to which the failure to make payment could not reasonably be expected to GAAP shall have a Material Adverse Effectbeen established on its books;
(de) Liens incurred (i) or pledges or deposits made in the Ordinary Course of Business in connection with workers’ worker’s compensation, unemployment insurance and or other types forms of social security laws and regulationsgovernmental insurance or benefits, (ii) in the Ordinary Course of Business or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and leases or other similar obligations (exclusive of obligations other than for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents entered into in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of crediton surety, bank guarantiesstay, surety customs, appeal or performance bonds;
(f) judgment Liens, performance bonds judicial attachments or similar instruments posted with respect to the items described Liens which do not otherwise result in clauses an Event of Default under Section 10.6 hereof that (i) through are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books to the extent that such Liens are being diligently protested by appropriate means or (iiiii) abovehave not been discharged within thirty (30) days after the filing thereof;
(eg) Liens consisting of easements, encroachments, protrusions, covenants, equitable servitudes, rights-of-way, land use, zoning restrictions, encroachments, and other minor defects or irregularities in title, title and other similar encumbrances not interfering in each case any material manner with the value or use of the property to which do not, such Lien is attached and in the aggregatecase of any real property, materially interfere encumbrances disclosed in the title insurance policy issued to the Agent;
(h) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent, or that are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books;
(i) Liens arising in the Ordinary Course of Business and consistent with past practice by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary and Liens deemed to exist in connection with investments in repurchase agreements constituting Cash Equivalents;
(j) any interest or title of a lessor, licensor or sublessor under any lease (including any ground lease), license or sublease entered into by any such Borrower or Subsidiary in the ordinary conduct course of its business and covering only the assets so leased, licensed or subleased;
(k) licenses, sublicenses, leases or subleases with respect to any asset granted to any Persons in the Ordinary Course of Business; provided, that the same do not materially and adversely affect the business of Holdings and its Restricted the Borrowers or their Subsidiaries or materially detract from the value of the assets of the Borrowers or their Subsidiaries, taken as a whole, or the use of the affected property secure any Indebtedness for its intended purposeborrowed money;
(fl) Liens consisting deposits (including letters of any credit) to secure the performance of bids, government contracts, trade contracts and leases (i) interest other than Indebtedness), statutory obligations, utilities, surety bonds (other than bonds related to judgments or title litigation), performance bonds and other obligations of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;
(h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into like nature incurred in the Ordinary Course of Business;
(im) Liens which arise under Article 4 of the Uniform Commercial Code in any applicable jurisdictions on items in collection and documents and proceeds related thereto;
(n) [reserved];
(o) customary Liens granted on the Equity Interests of any Subsidiary that is not a Borrower to the stockholders of such Subsidiary pursuant to the organizational documents of such Subsidiary;
(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment payments of customs duties in connection with the importation of goods;
(jq) Liens in connection with any zoning, building the purchase or similar Requirement shipping of Law goods or right reserved to assets on the related goods or vested assets and proceeds thereof in any Governmental Authority to control favor of the seller or regulate the use shipper of any such goods or dimensions of real property assets or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing customary reservations or retentions of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary title arising in the Ordinary Course of Business and consistent with past practice and in any case not securing Indebtedness;
(Dr) commodity trading Liens attaching to xxxx xxxxxxx money deposits in connection with any letter of intent or other brokerage accounts incurred purchase agreement in respect of a purchase that would reasonably be expected to result in a Permitted Acquisition or Investment permitted hereunder;
(s) Liens arising by virtue of deposits made in the Ordinary Course of BusinessBusiness or on insurance policies and the proceeds thereof to secure liability for premiums to insurance carriers, including liens on unearned insurance premiums securing the financing thereof;
(t) Liens consisting of contractual obligations of any Borrower to consummate a Disposition that is permitted under Section 7.1(b) hereof to the extent such Liens do not secure monetary obligations of the Borrowers to applicable purchaser and escrow arrangements with respect to such Dispositions, and Liens arising out of consignment, conditional sale, title retention or similar arrangements for the sale of goods in the Ordinary Course of Business and consistent with past practice to the extent such Liens attach solely to the goods subject to such consignment, conditional sale, title retention or similar arrangement;
(u) restrictions in joint venture agreements on the applicable joint venture granting Liens on its assets or the equity interests of such joint venture;
(v) Liens on property or assets of a Person (other than any Equity Interests of any Person) existing at the time such assets of such Person are acquired or such Person is merged into or consolidated with the Borrowers or any of their Subsidiaries or becomes a Subsidiary of the any Borrower; provided, that such Lien is not in the nature of a “blanket” or “all assets” Lien and was not created in contemplation of such acquisition, merger, consolidation or investment, and does not extend to any assets other than those acquired, merged or consolidated by the Borrowers; provided further that any Indebtedness or other obligations secured by such Liens shall otherwise be permitted under Section 7.8(p) hereof;
(w) Liens on (i) cash collateral accounts securing liabilities in respect of credit card facilities or merchant accounts, commodities accounts or brokerage accounts in the Ordinary Course of Business and consistent with past practice and (ii) Liens encumbering reasonable customary initial deposits and margin deposits, securities that are the subject of permitted repurchase agreements constituting Cash Equivalents;
(iii) bankers Liens and rights and remedies as to Deposit Accounts and (ivx) Liens on the proceeds of any Indebtedness incurred escrow accounts in connection with any transaction Permitted Acquisitions or Dispositions otherwise permitted hereunder to the extent such escrow arrangement is also permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
(py) Liens securing obligations on cash in favor of credit card processors in the Ordinary Course of Business and consistent with past practice;
(z) restrictions on cash or other than obligations representing Indebtedness for borrowed money) deposits or net worth imposed by customers under operating, reciprocal easement or similar agreements contracts entered into in the Ordinary Course of Business of Holdings and/or its Restricted Subsidiariesand consistent with past practice or that arise in connection with cash or other deposits permitted under this Section 7.2 and Section 7.4 hereof and limited to such cash or deposit;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(saa) other Liens on assets securing liabilities or Indebtedness or other obligations permitted under this Agreement in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 25,000,000, at any time outstanding; provided that such liens shall not be secured by cash and (ii) seven Cash Equivalents, shall not be secured by property other than Collateral and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is shall rank junior to the Lien Liens securing the Obligations and is subject Obligations, pursuant to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating intercreditor agreement acceptable to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goodsAgent;
(bb) Liens that on cash collateral used to secure Indebtedness permitted under Section 7.6(w)any judgment appeal in an amount and pursuant to procedures, in each case customary for such judgment appeal Liens;
(cc) Liens consisting of customary assignments of insurance or condemnation proceeds provided to landlords (ior their mortgagees) pursuant to the terms of any lease and Liens on Equity Interests and rights reserved in any lease for rent or for compliance with the terms of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;lease; and
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred under Sections 7.8(q), 7.8(s), 7.8(u) (to the extent constituting M&T Priority Collateral (for the avoidance of doubt, including Liens in reliance on, favor of M&T Bank permitted under Section 7.2(c)) and subject to the provisions set forth inMaster Mortgagee Agreement), 7.8(x) (to the extent constituting applicable Other Real Estate Priority Collateral), Section 7.6(q); provided, that 7.8(y) (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (iiextent constituting applicable Other Real Estate Priority Collateral) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n7.8(w); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Creation of Liens. No Loan Party shallEach Borrower will not, nor shall and will not permit any of its Restricted SubsidiariesSubsidiaries to, create directly or indirectly, create, incur, assume or suffer to exist any Lien or transfer upon or against any of its property or assets of any kind (real or personal, tangible or intangible) of any such Person (including its Equity Interests), whether now owned or hereafter created or acquired, except for the following (collectively, the “Permitted LiensEncumbrances”):
(a) Liens securing payment of the Obligations created pursuant to the Other DocumentsObligations;
(b) Liens for Taxes which are identified in Schedule 7.2 hereof, including replacements, extensions, modifications or renewals of such Liens on the property subject to such Liens on the Closing Date; provided, that such replaced, extended or modified Lien does not extend to any additional property other than (i) not then due, after acquired property that is affixed or incorporated into the property covered by such Lien and (ii) if due, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contestedproceeds and products thereof;
(c) statutory Liens securing Indebtedness of the type permitted under Section 7.8(d) hereof; provided, that (i) such Lien is granted within ninety (90) days after such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the cost of the applicable property, improvements or equipment at the time of such acquisition (or construction) and rights (iii) such Lien secures only the assets that are the subject of set-offthe Indebtedness referred to in such clause; provided, however, that the M&T Equipment Debt may also be secured by Liens on any or all of the M&T Priority Collateral so long as such Liens are subject to the Master Mortgagee Agreement;
(d) Liens arising by operation of landlords, banks, law in favor of carriers, warehousemen, mechanics, materialmen, repairmen, workmen contractors, subcontractors, suppliers and materialmenlandlords, Liens in respect of taxes, and other Liens imposed by applicable Requirements of Lawsimilar Liens, in each case case, incurred in the Ordinary Course of Business for amounts (i) for amounts not yet overdue by more than 30 daysor who have been bonded or filed or signed lien waivers for all payments due, (ii) which remain payable without penalty for amounts that are overdue by more a period not greater than 30 one hundred eighty (180) days and that are being Properly Contested or (iii) which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with respect to which the failure to make payment could not reasonably be expected to GAAP shall have a Material Adverse Effectbeen established on its books;
(de) Liens incurred (i) or pledges or deposits made in the Ordinary Course of Business in connection with workers’ worker’s compensation, unemployment insurance and or other types forms of social security laws and regulationsgovernmental insurance or benefits, (ii) in the Ordinary Course of Business or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and leases or other similar obligations (exclusive of obligations other than for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents entered into in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of crediton surety, bank guarantiesstay, surety customs, appeal or performance bonds;
(f) judgment Liens, performance bonds judicial attachments or similar instruments posted with respect to the items described Liens which do not otherwise result in clauses an Event of Default under Section 10.6 hereof that (i) through are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books to the extent that such Liens are being diligently protested by appropriate means or (iiiii) abovehave not been discharged within thirty (30) days after the filing thereof;
(eg) Liens consisting of easements, encroachments, protrusions, covenants, equitable servitudes, rights-of-way, land use, zoning restrictions, encroachments, and other minor defects or irregularities in title, title and other similar encumbrances not interfering in each case any material manner with the value or use of the property to which do not, such Lien is attached and in the aggregatecase of any real property, materially interfere encumbrances disclosed in the title insurance policy issued to the Agent;
(h) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent, or that are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been established on its books;
(i) Liens arising in the Ordinary Course of Business and consistent with past practice by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary and Liens deemed to exist in connection with investments in repurchase agreements constituting Cash Equivalents;
(j) any interest or title of a lessor, licensor or sublessor under any lease (including any ground lease), license or sublease entered into by any such Borrower or Subsidiary in the ordinary conduct course of its business and covering only the assets so leased, licensed or subleased;
(k) licenses, sublicenses, leases or subleases with respect to any asset granted to any Persons in the Ordinary Course of Business; provided, that the same do not materially and adversely affect the business of Holdings and its Restricted the Borrowers or their Subsidiaries or materially detract from the value of the assets of the Borrowers or their Subsidiaries, taken as a whole, or the use of the affected property secure any Indebtedness for its intended purposeborrowed money;
(fl) Liens consisting deposits (including letters of any credit) to secure the performance of bids, government contracts, trade contracts and leases (i) interest other than Indebtedness), statutory obligations, utilities, surety bonds (other than bonds related to judgments or title litigation), performance bonds and other obligations of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;
(h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into like nature incurred in the Ordinary Course of Business;
(im) Liens which arise under Article 4 of the Uniform Commercial Code in any applicable jurisdictions on items in collection and documents and proceeds related thereto;
(n) [reserved];
(o) customary Liens granted on the Equity Interests of any Subsidiary that is not a Borrower to the stockholders of such Subsidiary pursuant to the organizational documents of such Subsidiary;
(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment payments of customs duties in connection with the importation of goods;
(jq) Liens in connection with any zoning, building the purchase or similar Requirement shipping of Law goods or right reserved to assets on the related goods or vested assets and proceeds thereof in any Governmental Authority to control favor of the seller or regulate the use shipper of any such goods or dimensions of real property assets or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing customary reservations or retentions of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary title arising in the Ordinary Course of Business and consistent with past practice and in any case not securing Indebtedness;
(Dr) commodity trading Liens attaching to cxxx xxxxxxx money deposits in connection with any letter of intent or other brokerage accounts incurred purchase agreement in respect of a purchase that would reasonably be expected to result in a Permitted Acquisition or Investment permitted hereunder;
(s) Liens arising by virtue of deposits made in the Ordinary Course of BusinessBusiness or on insurance policies and the proceeds thereof to secure liability for premiums to insurance carriers, including liens on unearned insurance premiums securing the financing thereof;
(t) Liens consisting of contractual obligations of any Borrower to consummate a Disposition that is permitted under Section 7.1(b) hereof to the extent such Liens do not secure monetary obligations of the Borrowers to applicable purchaser and escrow arrangements with respect to such Dispositions, and Liens arising out of consignment, conditional sale, title retention or similar arrangements for the sale of goods in the Ordinary Course of Business and consistent with past practice to the extent such Liens attach solely to the goods subject to such consignment, conditional sale, title retention or similar arrangement;
(u) restrictions in joint venture agreements on the applicable joint venture granting Liens on its assets or the equity interests of such joint venture;
(v) Liens on property or assets of a Person (other than any Equity Interests of any Person) existing at the time such assets of such Person are acquired or such Person is merged into or consolidated with the Borrowers or any of their Subsidiaries or becomes a Subsidiary of the any Borrower; provided, that such Lien is not in the nature of a “blanket” or “all assets” Lien and was not created in contemplation of such acquisition, merger, consolidation or investment, and does not extend to any assets other than those acquired, merged or consolidated by the Borrowers; provided further that any Indebtedness or other obligations secured by such Liens shall otherwise be permitted under Section 7.8(p) hereof;
(w) Liens on (i) cash collateral accounts securing liabilities in respect of credit card facilities or merchant accounts, commodities accounts or brokerage accounts in the Ordinary Course of Business and consistent with past practice and (ii) Liens encumbering reasonable customary initial deposits and margin deposits, securities that are the subject of permitted repurchase agreements constituting Cash Equivalents;
(iii) bankers Liens and rights and remedies as to Deposit Accounts and (ivx) Liens on the proceeds of any Indebtedness incurred escrow accounts in connection with any transaction Permitted Acquisitions or Dispositions otherwise permitted hereunder to the extent such escrow arrangement is also permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
(py) Liens securing obligations on cash in favor of credit card processors in the Ordinary Course of Business and consistent with past practice;
(z) restrictions on cash or other than obligations representing Indebtedness for borrowed money) deposits or net worth imposed by customers under operating, reciprocal easement or similar agreements contracts entered into in the Ordinary Course of Business of Holdings and/or its Restricted Subsidiariesand consistent with past practice or that arise in connection with cash or other deposits permitted under this Section 7.2 and Section 7.4 hereof and limited to such cash or deposit;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(saa) other Liens on assets securing liabilities or Indebtedness or other obligations permitted under this Agreement in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 25,000,000, at any time outstanding; provided that such liens shall not be secured by cash and (ii) seven Cash Equivalents, shall not be secured by property other than Collateral and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is shall rank junior to the Lien Liens securing the Obligations and is subject Obligations, pursuant to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating intercreditor agreement acceptable to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goodsAgent;
(bb) Liens that on cash collateral used to secure Indebtedness permitted under Section 7.6(w)any judgment appeal in an amount and pursuant to procedures, in each case customary for such judgment appeal Liens;
(cc) Liens consisting of customary assignments of insurance or condemnation proceeds provided to landlords (ior their mortgagees) pursuant to the terms of any lease and Liens on Equity Interests and rights reserved in any lease for rent or for compliance with the terms of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;lease; and
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred under Sections 7.8(q), 7.8(s), 7.8(u) (to the extent constituting M&T Priority Collateral (for the avoidance of doubt, including Liens in reliance on, favor of M&T Bank permitted under Section 7.2(c)) and subject to the provisions set forth inMaster Mortgagee Agreement), 7.8(x) (to the extent constituting applicable Other Real Estate Priority Collateral), Section 7.6(q); provided, that 7.8(y) (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (iiextent constituting applicable Other Real Estate Priority Collateral) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n7.8(w); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Creation of Liens. No Loan Party shallDirectly or indirectly, nor shall any of its Restricted Subsidiariescreate, create incur, assume or suffer permit to exist any Lien on or transfer upon with respect to any property or against asset of any kind (including any document or instrument in respect of goods or accounts receivable) of any Credit Party or any of its property or assets Subsidiaries, whether now owned or hereafter acquired, created or acquiredlicensed or any income, except for (“Permitted Liens”):profits or royalties therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income, profits or royalties under the Uniform Commercial Code of any State or under any similar recording or notice statute or under any Applicable Laws related to intellectual property, except:
(a) Liens securing the Obligations created in favor of Agent granted pursuant to the this Agreement or any Other DocumentsDocument;
(b) Liens for Taxes which are (i) not then due, (ii) if due, not at such time required to be paid in favor of ABL Lender pursuant to Section 7.5 or (iii) being Properly Contestedthe ABL Loan Documents to the extent subject to the Intercreditor Agreement;
(c) Liens for Taxes not yet due and payable or for Taxes if obligations with respect to such Taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted;
(d) statutory Liens (and rights of set-off) of landlords, banks, carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements law (other than any such Lien imposed pursuant to Section 430(k) of Lawthe Code or Section 303(k) or 4068 of ERISA that would constitute an Event of Default under Section 10.17), in each case incurred in the Ordinary Course ordinary course of Business business (i) for amounts not yet overdue by more than 30 daysoverdue, or (ii) for amounts that are overdue by more than 30 days and that are being Properly Contested contested in good faith by appropriate proceedings, so long as such reserves or (iii) with respect to which the failure to make payment could not reasonably other appropriate provisions, if any, as shall be expected to required by GAAP shall have a Material Adverse Effectbeen made for any such contested amounts;
(de) Liens incurred (i) in the Ordinary Course ordinary course of Business business in connection with workers’ compensation, unemployment insurance and other types of social security laws and regulationssecurity, (ii) in the Ordinary Course of Business or to secure the performance of tenders, statutory obligations, surety, stay, customs surety and appeal 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 moneymoney or other Indebtedness), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents in the Ordinary Course of Business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing propertyso long as no foreclosure, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds sale or similar instruments posted proceedings have been commenced with respect to any portion of the items described in clauses (i) through (iii) aboveCollateral on account thereof;
(ef) Liens consisting of easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not, not and will not interfere in the aggregate, materially interfere any material respect with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole, any Credit Party or the use of the affected property for its intended purpose;
(f) Liens consisting of any (i) interest or title of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any of its Restricted Subsidiaries Subsidiaries, including, without limitation, all encumbrances shown on any policy of title insurance in connection with any letter favor of intent or purchase agreement Agent with respect to any Investment permitted hereunder;
(h) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into in the Ordinary Course of Business;
(i) 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;
(j) Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate the use of any or dimensions of real property or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) and (w) and (y) Indebtedness that is secured in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary in the Ordinary Course of Business and (D) commodity trading or other brokerage accounts incurred in the Ordinary Course of Business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts and (iv) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
(p) 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 of Holdings and/or its Restricted Subsidiaries;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(s) other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 and (ii) seven and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is junior to the Lien securing the Obligations and is subject to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;
(bb) Liens that secure Indebtedness permitted under Section 7.6(w);
(cc) (i) Liens on Equity Interests of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred in reliance on, and subject to the provisions set forth in, Section 7.6(q); provided, that (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (ii) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assets.Collateral;
Appears in 1 contract
Samples: Term Loan and Security Agreement (Direct Digital Holdings, Inc.)
Creation of Liens. No Loan Party shallUntil the full satisfaction of the Parent Notes, nor shall any of its Restricted Subsidiariesother than Permitted Liens (as defined below), Parent will not create or suffer permit to exist be created any Lien liens in or transfer upon on Parent’s tangible or against any of its property or assets now owned or hereafter created or acquired, except for (intangible assets. “Permitted Liens”):
(a) Liens securing the Obligations created pursuant to the Other Documents;
(b) Liens for Taxes which are ” means: (i) not then due, liens securing equipment indebtedness; (ii) if dueliens imposed by law, not at such time required to be paid pursuant to Section 7.5 or (iii) being Properly Contested;
(c) statutory Liens (and rights of set-off) of landlords, banks, as carriers’, warehousemen’s, materialmen’s and mechanics’ liens, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements or liens arising out of Law, in each case incurred in the Ordinary Course of Business (i) for amounts not yet overdue by more than 30 days, (ii) for amounts that are overdue by more than 30 days and that are being Properly Contested judgments or (iii) awards against Parent with respect to which Parent at the failure time shall currently be prosecuting an appeal or proceedings for review; (iii) liens for taxes not yet subject to make penalties for nonpayment and liens for taxes the payment could not reasonably be expected of which is being contested in good faith and by appropriate proceedings and for which, to have a Material Adverse Effect;
the extent required by generally accepted accounting principles then in effect, proper and adequate book reserves relating thereto are established by Parent; (div) Liens incurred liens (iA) upon or in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other types of social security laws and regulations, (ii) in the Ordinary Course of Business any equipment acquired or held by Parent to secure the performance purchase price of tenderssuch equipment or indebtedness incurred solely for the purpose of financing the acquisition of such equipment, statutory obligationsor (B) existing on such equipment at the time of its acquisition, suretyprovided that the lien is confined solely to the property so acquired and improvements thereon, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds the proceeds of such equipment and other similar obligations equipment financed by the holder of such lien; (exclusive v) liens consisting of obligations for the payment of borrowed money), (iii) pursuant leases or subleases and licenses and sublicenses granted to pledges and deposits of Cash or Cash Equivalents others in the Ordinary Course ordinary course of Business securing (x) Parent’s business not interfering in any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in material respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii) above;
(e) Liens consisting of easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not, in the aggregate, materially interfere with the ordinary conduct of the business of Holdings Parent and its Restricted Subsidiaries, taken as a whole, or the use of the affected property for its intended purpose;
(f) Liens consisting of any (i) interest or title of a lessor or sub-lessor licensor under any lease of real estate permitted hereunderor license, as applicable; (iivi) landlord liens to secure any license granted by Parent, provided, that such lien permitted by is confined solely to the terms of any lease, (iii) restriction or encumbrance to which property that is the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee license; (vii) liens incurred or sub-lessee under such lease to any restriction or encumbrance referred to deposits made in the preceding clause (iii);
(g) Liens solely on any Xxxx xxxxxxx money deposits made by Holdings and/or any ordinary course of its Restricted Subsidiaries Parent’s business in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;
worker’s compensation, unemployment insurance, social security and other like laws; (hviii) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases entered into in the Ordinary Course of Business;
(i) Liens 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;
(j) Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate the use of any or dimensions of real property or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(k) Liens securing Indebtedness permitted pursuant to Section 7.6(m) (solely with respect to the permitted refinancing of (x) Indebtedness permitted pursuant to Sections 7.6(a), (j), (k), (n), (s) ; and (wix) and (y) Indebtedness that is secured liens to which the Required Holders expressly consent to in reliance on Section 7.2(s) (without duplication of any amount outstanding thereunder, and which shall continue to constitute utilization of the basket set forth therein)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the relevant secured parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens described on Schedule 7.2 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 7.6;
(m) Liens securing Indebtedness permitted pursuant to Section 7.6(j); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 7.6(j) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
(n) Liens securing Indebtedness permitted pursuant to Section 7.6(k) on the relevant acquired assets or on the Equity Interests and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Equity Interests;
(i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of Holdings and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of Holdings and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of Holdings and/or any Restricted Subsidiary in the Ordinary Course of Business and (D) commodity trading or other brokerage accounts incurred in the Ordinary Course of Business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts and (iv) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
(p) 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 of Holdings and/or its Restricted Subsidiaries;
(q) [reserved];
(r) Liens securing Indebtedness incurred pursuant to Section 7.6(r) and (s) subject to an Acceptable Intercreditor Agreement;
(s) other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness or other obligations secured pursuant to this Section 7.2(s), not to exceed the greater of (i) $15,000,000 and (ii) seven and one-half percent (7.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended; provided, that any Lien that is granted in reliance on this clause (s) on any ABL Facility Priority Collateral is junior to the Lien securing the Obligations and is subject to an Acceptable Intercreditor Agreement;
(t) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating to litigation being contested in good faith not constituting an Event of Default under Section 10.6;
(u) leases, licenses, subleases or sublicenses granted to others in the Ordinary Course of Business which do not secure any Indebtedness;
(v) Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.3 arising out of such repurchase transaction;
(w) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 7.6(d), (f), and (t);
(x) Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the Ordinary Course of Business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirements of Law of any jurisdiction);
(y) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.6;
(z) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;
(bb) Liens that secure Indebtedness permitted under Section 7.6(w);
(cc) (i) Liens on Equity Interests of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
(dd) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(ee) Liens securing Indebtedness incurred in reliance on, and subject to the provisions set forth in, Section 7.6(q); provided, that (i) any such Lien on any ABL Facility Priority Collateral shall be junior to the Lien securing the Obligations, and (ii) any such Lien that is granted in reliance on this clause (ee) on the Collateral and is pari passu or junior to the Lien securing the Obligations shall be subject to an Acceptable Intercreditor Agreement;
(ff) Liens on Excluded Real Property securing Indebtedness permitted under Section 7.6(n); and
(gg) Liens securing Permitted Purchase Money Indebtedness so long as such Lien is confined solely to the fixed assets acquired through the incurrence of the Permitted Purchase Money Indebtedness secured by such lien and the proceeds and other assets related solely to such fixed assetswriting.
Appears in 1 contract
Samples: Note Amendment and Exchange Agreement (Genome Therapeutics Corp)
