Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 4 contracts
Sources: Loan and Security Agreement (Ulta Beauty, Inc.), Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.), Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)
Encumbrances. Such Borrower shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge Lien or other encumbrance of any nature whatsoever on any of its assets or propertiesassets, including including, without limitation, the Collateral, except: other than the following (athe "Permitted Liens"): (i) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens Liens securing the payment of taxes, either not yet overdue due or the validity of which are is being contested in good faith by appropriate proceedings diligently pursued proceedings, and available as to which such Borrower or such SubsidiarySubsidiary shall, as the case may be and with respect to which adequate reserves if appropriate under generally accepted accounting principles, have been set aside on its booksbooks and records adequate reserves; (cii) non-consensual statutory liens deposits under workmen's compensation, unemployment insurance, social security and other similar laws, or to secure the performance of bids, tenders or contracts (other than liens securing for the payment repayment of taxesborrowed money) arising or to secure indemnity, performance or other similar bonds for the performance of bids, tenders or contracts (other than for the repayment of borrowed money) or to secure statutory obligations or surety or appeal bonds, or to secure indemnity, performance or other similar bonds in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its booksbusiness; (diii) the Liens in favor of Agent; (iv) Liens which arise by operation of law, other than Environmental Liens; (v) zoning restrictions, easements, licenses, reservations, conditions, covenants and other restrictions affecting the use of real property property; (vi) Liens represented by Capitalized Leases permitted under Subsection 8.2(iii) hereof; (vii) Liens listed on Schedule 8.1 hereto; (viii) Liens existing on the assets of any Excluded Subsidiary at the time such Person becomes an Excluded Subsidiary; and (ix) other Liens and encumbrances on property, which do not interfere not, in any material respect with Agent's sole determination, (a) materially impair the use of such real property for purposes of this Agreement or ordinary conduct of the business of Borrower otherwise, or such Subsidiary as presently conducted thereon or (b) materially impair lessen the value of such property to Agent or otherwise. Such Borrower shall not, and shall not permit any of its Subsidiaries to, permit the real property which may be subject thereto; (e) purchase money filing of any financing statement naming such Borrower or any of its Subsidiaries as debtor, except for financing statements filed with respect to liens or security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated expressly permitted by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatethis Agreement.
Appears in 3 contracts
Sources: Loan and Security Agreement (Abc Rail Products Corp), Loan and Security Agreement (Abc Rail Products Corp), Loan and Security Agreement (Abc Rail Products Corp)
Encumbrances. The Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance Lien of any nature whatsoever on any of its assets or propertiesproperty, including including, without limitation, the Collateral, except: other than the following (a“Permitted Liens”): (i) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens Liens securing the payment of taxes, either not yet overdue due or the validity of which are is being contested in good faith by appropriate proceedings diligently pursued proceedings, and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves the Borrower shall, if appropriate under GAAP, have been set aside on its booksbooks and records adequate reserves, provided, that such contest does not have a material adverse effect on the ability of the Borrower to pay any of the Liabilities, or the priority or value of the Administrative Agent’s Lien in the Collateral; (ii) deposits under workmen’s compensation, unemployment insurance, social security and other similar laws made in the ordinary course of business; (iii) Liens in favor of the Administrative Agent (for the ratable benefit of Lenders and Administrative Agent); (iv) liens imposed by law, such as mechanics’, materialmen’s, landlord’s, warehousemen’s, carriers’ and other similar liens, securing obligations incurred in the ordinary course of business that are not past due for more than thirty (30) calendar days, or that are being diligently contested in good faith by appropriate proceedings and for which appropriate reserves have been established, or that are not yet due and payable; (v) purchase money security interests upon or in any property acquired or held by the Borrower in the ordinary course of business to secure the purchase price of such property so long as: (a) the aggregate indebtedness relating to such purchase money security interests and Capitalized Lease Obligations does not at any time exceed Three Million and No/100 Dollars ($3,000,000.00) in the aggregate at any time, (b) each such lien shall only attach to the property to be acquired; and (c) non-consensual the indebtedness incurred shall not exceed one hundred percent (100%) of the purchase price of the item or items purchased; (v) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation laws, unemployment insurance and other social security laws or regulations, or deposits to secure performance of tenders, statutory liens obligations, trade contracts (other than liens securing the payment for Indebtedness), leases (other than Capital Lease Obligations), surety and appeal bonds, performance bonds and other obligations of taxes) arising a like nature incurred in the ordinary course of Borrower’s business as presently conducted; (vi) any Lien securing a judgment; provided, that any Lien securing a judgment in excess of Five Hundred Thousand Dollars ($500,000.00) that remains unsatisfied or undischarged for more than thirty (30) days shall not be a Permitted Lien, unless such Subsidiary’s business to the extent: judgment is either (ix) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the such insurer has admitted liability or (y) is being contested in good faith or appealed by appropriate proceedings diligently pursued and available to the enforcement of such judgment is stayed during the course of such contest or appeal, provided that Borrower has established reserves adequate for payment of such judgment and in the event such contest or appeal is ultimately unsuccessful pays such Subsidiaryjudgment within ten (10) days of the final, non-appealable ruling rendered in each case prior to the commencement of foreclosure such contest or other similar proceedings and appeal; (vii) financing statements with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants a lessor’s rights in and other restrictions affecting the use of real to personal property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not leased to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms other than through a Capitalized Lease Obligations; (viii) Liens in favor of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowAviv Lessor, providedOmega and the Omega Senior Lessor, that, such liens shall be junior and subordinate subject in all cases to the liens provisions of Collateral Agent on terms the Intercreditor Agreements; and conditions acceptable (ix) Liens securing any HUD Financing, subject to Collateral Agent; satisfaction of Section 6.8 of the Term Loan Agreement (i) pledges and deposits as well as execution of cash, Cash Equivalents or investment securities a customary intercreditor agreement required by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, HUD (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not as defined in the aggregate exceed $2,500,000, (ii-74- Term Loan Agreement) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory reasonably acceptable to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingLenders); and (jx) Liens securing any Indebtedness incurred in connection with the security interests acquisition of the land and liens set forth on Schedule 8.4 improvements comprising the Rose Terrace Facility pursuant to the Information Certificatepurchase option provided under the Rose Terrace Lease.
Appears in 3 contracts
Sources: Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.), Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.), Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Encumbrances. Neither Parent nor any Borrower shall, nor shall not, and shall not it permit or suffer any Subsidiary of its Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Parent or such Borrower or such Subsidiary, as the case may be Subsidiary and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s Parent's or such Borrower's or Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Parent or such Borrower or such Subsidiary, as the case may be, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Parent or such Borrower or such Subsidiary Subsidiary, as the case may be, as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests liens on property (other than property that would constitute Collateral hereunder if it were property of a Borrower) of a Person existing at the time such Person is acquired by, merged into or consolidated with Parent or such Borrower or Subsidiary, provided that such liens were not created in Equipment (including Capital Leases) contemplation of such acquisition and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply extend to any property of Borrower assets other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may bethose subject to such liens immediately prior to such acquisition; (f) liens on property (other than property that would constitute Collateral hereunder if it were property of a Borrower) existing at the time of acquisition thereof by Parent or rights such Borrower or Subsidiary, provided that such liens were not created in contemplation of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees such acquisition and chargebacksdo not extend to assets other than those subject to such liens immediately prior to such acquisition; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower liens incurred in the ordinary course of business in respect of obligations incurred to fix the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premisesinterest rate on any variable rate indebtedness permitted hereunder; (h) liens on assets incurred in the ordinary course of Borrower business to secure indebtedness the performance of Borrower permitted under Section 9.9(d) belowstatutory obligations, providedsurety or appeal bonds, thatperformance bonds or other obligations of a like nature (exclusive of obligations constituting indebtedness), such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agentincluding, without limitation, cash retainages; (i) pledges and deposits liens incidental to the conduct of cash, Cash Equivalents business or investment securities by Borrower to secure indebtedness the ownership of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) properties incurred in the aggregate amount so pledged or deposited, together with the amount ordinary course of all Letter of Credit Accommodations issued business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, bids, and government contracts and leases and subleases; (j) liens for any Hedging Agreementsinterest or title of a lessor under any operating lease permitted to be incurred hereunder, shall provided that such liens do not extend to any property or asset that is not property subject to such lease, and liens to secure Purchase Money Indebtedness permitted hereunder; (k) any extension, renewal, or replacement (or successive extensions, renewals or replacements), in whole or in part, of liens described in clauses (a) through (j) or (l) through (n); (l) Liens in addition to those permitted otherwise by this Section 9.8, which in the aggregate exceed are secured by assets with a fair market value not in excess of $2,500,000, 100,000 at any time; (iim) as liens and security interests in the Collateral or in the Capital Stock of each Parent and its Subsidiaries for the benefit of the thirty (30) days immediately preceding holders of the date of Senior Notes but only so long as such pledge or deposit liens and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party security interests are subject to the Hedging Agreement as a condition to it entering into such contract with Borrower Intercreditor Agreement, and Administrative Agent provided that none of Parent, any Borrower, or any other Subsidiary of Parent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as grant any lien or security interest for the benefit of the date holders of the Senior Notes in any other property or assets unless Lender is granted a lien or security interest in such pledge property or deposit assets that is prior to the lien or security interest for the benefit of the holders of the Senior Notes to the same extent as Lender's security interests in the Collateral, and after giving effect thereto, no Default the respective liens or Event security interests of Default shall exist Lender and such holders or have occurred and be continuingtheir agent are otherwise subject to the Intercreditor Agreement; and (jn) the security interests and liens existing on the date hereof and set forth on Schedule 8.4 to the Information Certificate.
Appears in 3 contracts
Sources: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation Corp)
Encumbrances. Borrower No Loan Party shall, nor shall not, and shall not it permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance Lien of any nature whatsoever on any of its assets or properties, including the Collateral, 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 assets or properties, except: :
(a) the security interests and liens Liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties;
(b) liens Liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Loan Party or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; books in accordance with GAAP;
(c) non-consensual statutory liens (any carrier’s, freight forwarder’s, warehouseman’s, materialman’s, logger’s, contractor’s, mechanic’s, landlord’s or other than liens securing the payment of taxessimilar Liens) arising in the ordinary course of Borrowersuch Loan Party’s or such Subsidiary’s business to the extent: for sums not then due or payable or past due by more than sixty (i60) such liens secure Indebtedness which is not overdue days (or (ii) such liens secure Indebtedness relating to claims or liabilities which that are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith and, to the extent necessary to prevent forfeiture or sale of the property or assets subject to any such Lien, by appropriate proceedings diligently pursued proceedings) and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; that do not secure Indebtedness;
(d) zoning restrictionssurvey exceptions, easementsencumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, zoning or land use restrictions, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Loan Party or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) Liens securing Indebtedness permitted to be incurred under Section 10.3(b); provided that (i) the Lien may not extend to any Collateral or other property owned by such Person or any Loan Party at the time the Lien is incurred (other than assets and property affixed or appurtenant thereto and any proceeds thereof), (ii) the Indebtedness (other than any interest thereon) secured by the Lien may not be incurred more than one hundred eighty (180) days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien; and (iii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of the original purchase money price or lease payment amount of such property at the time it was acquired;
(f) pledges and deposits of cash by any Loan Party or any of its Subsidiaries after the Closing Date in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security interests benefits consistent with the current practices of such Loan Party or Subsidiary as of the Closing Date or current industry practice;
(g) pledges and deposits of cash by any Loan Party or any of its Subsidiaries after the Closing Date to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in Equipment each case in the ordinary course of business consistent with the current practices of such Loan Party as of the Closing Date or current industry practice;
(including Capital Leasesh) Liens arising from (i) operating leases and the precautionary UCC and PPSA financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Loan Party located on the premises of such Loan Party (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business of such Loan Party and the precautionary UCC and PPSA financing statement filings in respect thereof;
(i) judgments and other similar Liens arising in connection with court proceedings that do not constitute an Event of Default, provided that (i) such Liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of enforcement of any such Liens is in effect and (iv) Agent may establish a Reserve with respect thereto;
(j) the Liens set forth on Schedule 10.2;
(k) the Liens securing Indebtedness permitted under Section 10.3(h) and purchase money mortgages on real estate not reasonable administrative expenses of the collateral agent in respect of such Indebtedness, subject to exceed $15,000,000 the terms of the Intercreditor Agreement or such other intercreditor agreement referred to in Section 10.3(h);
(l) leases, subleases, licenses or sublicenses granted to others in the aggregate at any time outstanding so long as such interests and mortgages ordinary course of business that do not materially interfere with the ordinary conduct of the business of the Company or any Loan Party and do not secure any Indebtedness;
(m) any Liens that the underlying fee interest of the owners of real property leased by any Loan Party or any Subsidiary is subject, including any Liens that apply to the leasehold interests of any Loan Party or such Subsidiary by virtue of the underlying fee interest being subject to such Liens; and
(n) Liens on property or assets of Borrower a Person existing at the time (i) such Person is merged with or into or consolidated with the Company or another Loan Party, or becomes a Loan Party or (ii) such property or assets are acquired by the Company or any other Loan Party (and, in each case, not created or incurred in anticipation of such transaction) pursuant to a transaction permitted by this Agreement, provided that such Liens are not extended to the property and assets of any Loan Party other than the Equipment property or real estate so assets acquired, ;
(o) Liens securing Indebtedness owed to and held by the indebtedness secured thereby does Company or another Loan Party;
(p) other Liens (not exceed securing Indebtedness) incidental to the cost conduct of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost business of the Equipment Company or real estate so acquiredany Subsidiary, as the case may be; (f) liens , or rights the ownership of setoffs its assets that do not individually or credit balances in the aggregate materially adversely affect the value of Borrower with Credit Card Processors such assets, taken as a result whole, or materially impair the operation of fees the business of the Company or any Subsidiary;
(q) Liens to secure any permitted extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by Liens permitted by Sections 10.2(e), (j) and chargebacks(n); provided that such Liens do not extend to any other property or assets and the principal amount of the obligations secured by such Liens is not increased (gexcept to the extent of any reasonable premiums paid and reasonable transaction costs incurred in connection with such extension, renewal, refinancing or refunding);
(r) deposits Liens in favor of cash customs or revenue authorities arising as a matter of law to secure payment of custom duties in connection with the owner or lessor importation of retail store locations leased and operated by Borrower goods incurred in the ordinary course of business;
(s) Deposits made in the ordinary course of business of Borrower to secure liability to insurance carriers;
(t) Liens on the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower a Subsidiary that is not a Loan Party securing Indebtedness and other obligations of such Subsidiary permitted hereunder;
(u) Liens on timberlands not required to secure indebtedness of Borrower permitted be Collateral under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued this Agreement in connection with any Hedging Agreementsarrangement under which the Company or any other Loan Party is obligated to cut or pay for timber in order to provide the secured party with a specified amount of money, shall however determined;
(v) Liens (other than Liens on Collateral) securing Indebtedness permitted under Section 10.3(q) in an aggregate amount not to exceed $50,000,000 at any time outstanding; and
(w) Liens (i) that are contractual rights of set-off (A) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (B) relating to pooled deposit or sweep accounts of the Company or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations and other cash management activities incurred in the aggregate exceed $2,500,000ordinary course of business of the Company and or any of its Subsidiaries or (C) relating to purchase orders and other agreements entered into with customers of the Company or any of its Subsidiaries in the ordinary course of business, (ii) as of each a collection bank arising under Section 4-210 of the thirty (30) days immediately preceding UCC on items in the date course of such pledge collection, encumbering reasonable customary initial deposits and margin deposits and attaching to commodity trading accounts or deposit other brokerage accounts incurred in the ordinary course of business, and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge in favor of banking institutions arising as a matter of law or deposit pursuant to customary account agreements encumbering deposits (or including the right to demand such pledge or depositof set-off) shall be required by and which are within the other party to general parameters customary in the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatebanking industry.
Appears in 2 contracts
Sources: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; the Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue delinquent or the validity or amount of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (including without limitation, landlords’, carriers’, warehousemen’s, mechanics, materialmen’s or other than like liens but excluding liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, building codes, easements, licenses, covenants covenants, land use laws, and other restrictions affecting the use of real property Real Property and other similar matters of record affecting title to Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and deposits of cash by any Borrower or Guarantor or Subsidiary after the date hereof in the aggregate at any time outstanding so long as ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the current or prior practices of such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; Guarantor;
(fg) liens or rights of setoffs or setoff against credit balances of Borrowers, Guarantors or any of their Subsidiaries with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrower with in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrowers, pursuant to the Credit Card Agreements to secure the obligations of Borrowers to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks; ;
(gh) pledges and deposits of cash by any Borrower or Guarantor or Subsidiary after the date hereof to secure the performance of tenders, bids, leases, trade contracts, statutory obligations and other similar obligations in each case (1) in the ordinary course of business of such Borrower, Guarantor or Subsidiary and (2) other than for the repayment of Indebtedness;
(i) liens arising from (i) operating leases and the precautionary UCC financing statement or fixture filings in respect thereof and (ii) Equipment or other materials which are not owned by any Borrower, Guarantor or Subsidiary located on the premises of such Borrower, Guarantor or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business of such Borrower, Guarantor or Subsidiary and the precautionary UCC financing statement or fixture filings in respect thereof;
(j) deposits of cash with the owner or lessor of retail store locations premises leased and operated by Borrower any Borrower, Guarantor or Subsidiary in the ordinary course of the business of Borrower such Borrower, Guarantor or Subsidiary to secure the performance by Borrower such Borrower, Guarantor or Subsidiary of its obligations under the terms of the Real Property lease for such premises; ;
(hk) judgments and other similar liens on assets arising in connection with court proceedings that do not constitute an Event of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowDefault, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as Agent may establish Reserves with respect thereto;
(l) security interests in assets of a Borrower, Guarantor or Subsidiary existing at the time such Borrower, Guarantor or Subsidiary is acquired pursuant to a Permitted Acquisition after the date hereof; provided, that, each of the date following conditions is satisfied as determined by Agent: (i) such security interests were not granted and did not arise in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (ii) the assets subject to such security interests do not include any assets of the type or categories that constitute Collateral other than Equipment or Real Property and do not apply to any assets or properties of any Borrower or other Guarantor other than Equipment and Real Property of the Borrower, Guarantor or Subsidiary so acquired, (iii) the Indebtedness secured by such assets is permitted under Section 9.9(h) hereof;
(m) other liens not otherwise permitted under any other subsection of this Section 9.8 with respect to property or assets of any Borrower, Guarantor or Subsidiary; provided that the aggregate principal amount of the Indebtedness or other obligations secured by such liens does not exceed $1,000,000 at any time outstanding;
(n) liens or security interests arising by law or granted by any Borrower or any Guarantor in favor of a lessor, landlord, consignee, warehouseman or bailee of a retail store location, Non-Retail Store Location or Warehouse Location, as applicable, on personal property and/or trade fixtures owned by any Borrower or Guarantor located at such locations granted pursuant to a lease agreement between such Borrower or Guarantor and such lessor, landlord, consignee, warehouseman or bailee, as applicable, entered into in the ordinary course of business, in each case granted to secure obligations owed by such Borrower or Guarantor with respect to any rental payments, service charges or other amounts owing to such lessor, landlord, consignee, warehouseman or bailee, as applicable, pursuant to such lease agreement; provided, that, in the event that Administrative Borrower does not obtain a Collateral Access Agreement with respect to such locations, Agent at its option, may establish a Reserve with respect to each such location in respect of amounts at any time due or to become due to the lessor, landlord, consignee, warehouseman or bailee, as applicable, of such pledge location as Agent shall reasonably determine but in no event shall any Reserve with respect to rent be maintained in respect of any location for which a Collateral Access Agreement has been delivered to Agent;
(o) [reserved];
(p) liens incurred by any Borrower or deposit and after giving effect thereto, no Default Guarantor on any unearned premiums paid by any Borrower or Event Guarantor or any return of Default shall exist or have occurred and be continuing; and the premium for such policy pursuant to the Indebtedness described in Section 9.9(j) hereof;
(jq) the security interests and liens set forth on Schedule 8.4 hereto;
(r) [reserved];
(s) [reserved];
(t) liens securing the ABL Obligations to the Information Certificateextent permitted to be incurred pursuant to Section 9.9(t); provided that such liens are at all times subject to the Intercreditor Agreement. For the avoidance of doubt, for purposes of this Agreement, “encumbrance” shall not be deemed to include licenses of Intellectual Property which are otherwise permitted under the terms of this Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Encumbrances. No Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens in favor of warehouseman, landlords, carriers, mechanics, materialmen, laborers or suppliers; (c) liens arising from deposits made in connection with obtaining workers' compensation or other unemployment insurance; (d) liens arising by reason of security for surety, appeal bonds or performance bonds; (e) liens resulting from any judgment or award that would not have a material adverse effect on the Borrowers taken as a whole; (f) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (cg) non-non- consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (dh) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (ei) purchase money security interests in Equipment (including Capital Leasescapital leases) arising after the date hereof and purchase money mortgages on real estate not to exceed $15,000,000 1,500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of such Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto; (k) security interests and liens created pursuant to the Information Certificaterefinancing of obligations and indebtedness pursuant to Section 9.9(e) hereof; (l) liens arising from operating leases and (m) liens against any life insurance policy or the cash surrender value thereof which relate to borrowings incurred to finance the premiums made under such policy. Lender shall upon the acquisition of Equipment as provided pursuant to subsection (i) above, release its security interest in such Equipment so acquired if so required under the terms of the financing arrangements governing such acquisition.
Appears in 2 contracts
Sources: Loan and Security Agreement (LSB Industries Inc), Loan and Security Agreement (LSB Industries Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 50,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Navarre Corp /Mn/), Loan and Security Agreement (Teardrop Golf Co)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, exceptEXCEPT: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves in accordance with GAAP have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property (and with respect to leasehold interests, mortgages, obligations, liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without the consent of the lessee) which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 75,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto; (g) liens incurred and pledges and deposits made in the ordinary course of business in connection with workmen's compensation, unemployment insurance, old-age pensions and other social security benefits; (h) liens securing the performance of bids, tenders, leases, contracts (other than for the repayment of borrowed money), statutory obligations, surety, customs and appeal bonds and other obligations of like nature, incurred as an incident to and in the ordinary course of business; (i) liens created in connection with capital leases permitted by Section 9.7(b)(iv) hereof as long as such liens relate solely to the Information Certificateproperty subject to such capital leases; (j) liens on equipment or other property (other than Inventory) existing at the time such property is acquired by Borrower; provided, in each case, that such liens were not created in contemplation of such acquisition by Borrower; (k) mortgages upon real property owned by Borrower on the Closing Date or hereafter acquired by Borrower, provided that (i) the principal amount of the indebtedness secured by such lien does not exceed the fair market value of the real property to which such lien relates and (ii) the incurrence of such indebtedness is permitted by Section 9.9 hereof; and (l) extensions, renewals and replacements of liens referred to in paragraphs (a) through (k) of this Section 9.8; PROVIDED, HOWEVER, that any such extension, renewal or replacement lien shall be limited to the property or assets covered by the lien extended, renewed or replaced and that the principal amount of the obligations secured by any such extension, renewal or replacement lien shall be in an amount not greater than the principal amount of the obligations secured by the lien extended, renewed or replaced.
Appears in 2 contracts
Sources: Loan and Security Agreement (Eagle Food Centers Inc), Loan and Security Agreement (Eagle Food Centers Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; the Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue delinquent or the validity or amount of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (including without limitation, landlords’, carriers’, warehousemen’s, mechanics, materialmen’s or other than like liens but excluding liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, building codes, easements, licenses, covenants covenants, land use laws, and other restrictions affecting the use of real property Real Property and other similar matters of record affecting title to Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and deposits of cash by any Borrower or Guarantor or Subsidiary after the date hereof in the aggregate at any time outstanding so long as ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the current or prior practices of such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; Guarantor;
(fg) liens or rights of setoffs or setoff against credit balances of Borrowers, Guarantors or any of their Subsidiaries with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrower with in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrowers, pursuant to the Credit Card Agreements to secure the obligations of Borrowers to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks; ;
(gh) pledges and deposits of cash by any Borrower or Guarantor or Subsidiary after the date hereof to secure the performance of tenders, bids, leases, trade contracts, statutory obligations and other similar obligations in each case (1) in the ordinary course of business of such Borrower, Guarantor or Subsidiary and (2) other than for the repayment of Indebtedness;
(i) liens arising from (i) operating leases and the precautionary UCC and PPSA financing statement or fixture filings in respect thereof and (ii) Equipment or other materials which are not owned by any Borrower, Guarantor or Subsidiary located on the premises of such Borrower, Guarantor or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business of such Borrower, Guarantor or Subsidiary and the precautionary UCC financing statement or fixture filings in respect thereof;
(j) deposits of cash with the owner or lessor of retail store locations premises leased and operated by Borrower any Borrower, Guarantor or Subsidiary in the ordinary course of the business of Borrower such Borrower, Guarantor or Subsidiary to secure the performance by Borrower such Borrower, Guarantor or Subsidiary of its obligations under the terms of the Real Property lease for such premises; ;
(hk) judgments and other similar liens on assets arising in connection with court proceedings that do not constitute an Event of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowDefault, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as Agent may establish Reserves with respect thereto;
(l) security interests in assets of a Borrower, Guarantor or Subsidiary existing at the time such Borrower, Guarantor or Subsidiary is acquired pursuant to a Permitted Acquisition after the date hereof; provided, that, each of the date following conditions is satisfied as determined by Agent: (i) such security interests were not granted and did not arise in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (ii) the assets subject to such security interests do not include any assets of the type or categories that constitute Collateral other than Equipment or Real Property and do not apply to any assets or properties of any Borrower or other Guarantor other than Equipment and Real Property of the Borrower, Guarantor or Subsidiary so acquired, (iii) the Indebtedness secured by such assets is permitted under Section 9.9(h) hereof;
(m) other liens not otherwise permitted under any other subsection of this Section 9.8, other liens with respect to property or assets of any Borrower, Guarantor or Subsidiary; provided that the aggregate principal amount of the Indebtedness or other obligations secured by such liens does not exceed $1,000,000 at any time outstanding;
(n) liens or security interests arising by law or granted by any Borrower or any Guarantor in favor of a lessor, landlord, consignee, warehouseman or bailee of a retail store location, Non-Retail Store Location or Warehouse Location, as applicable, on personal property and/or trade fixtures owned by any Borrower or Guarantor located at such locations granted pursuant to a lease agreement between such Borrower or Guarantor and such lessor, landlord, consignee, warehouseman or bailee, as applicable, entered into in the ordinary course of business, in each case granted to secure obligations owed by such Borrower or Guarantor with respect to any rental payments, service charges or other amounts owing to such lessor, landlord, consignee, warehouseman or bailee, as applicable, pursuant to such lease agreement; provided, that, in the event that Administrative Borrower does not obtain a Collateral Access Agreement with respect to such locations, Agent at its option, may establish a Reserve with respect to each such location in respect of amounts at any time due or to become due to the lessor, landlord, consignee, warehouseman or bailee, as applicable, of such pledge location as Agent shall reasonably determine but in no event shall any Reserve with respect to rent be maintained in respect of any location for which a Collateral Access Agreement has been delivered to Agent;
(o) [reserved];
(p) liens incurred by any Borrower or deposit and after giving effect thereto, no Default Guarantor on any unearned premiums paid by any Borrower or Event Guarantor or any return of Default shall exist or have occurred and be continuingthe premium for such policy; and pursuant to the Indebtedness described in Section 9.9(j) hereof;
(jq) the security interests and liens set forth on Schedule 8.4 hereto;
(r) [reserved]; and
(s) liens securing the Term Loan Obligations to the Information Certificateextent permitted to be incurred pursuant to Section 9.9(t); provided that such liens are at all times subject to the Intercreditor Agreement. For the avoidance of doubt, for purposes of this Agreement, “encumbrance” shall not be deemed to include licenses of Intellectual Property which are otherwise permitted under the terms of this Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed the Canadian Dollar Amount of $15,000,000 50,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto (except to the Information Certificateextent that Lender requires the discharge thereof prior to the advance of the initial Loans hereunder).
Appears in 2 contracts
Sources: Loan Agreement (G G S Plastic Engineering Inc), Loan Agreement (G G S Plastic Engineering Inc)
Encumbrances. Borrower The Borrowers shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except (the following being “Permitted Encumbrances”): (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower the Borrowers or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its booksbooks in accordance with GAAP; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s the Borrowers’ or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue overdue; or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower the Borrowers or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower the Borrowers or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 8.13(b) hereof; (f) the security interests and liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower Existing Lenders on that certain real property located at 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingExisting Debt; and (jg) the security interests and liens set forth on Schedule 8.4 8.12 to the Information CertificatePerfection Certificate which are not permitted by the other provisions of Section 8.12 above.
Appears in 2 contracts
Sources: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Encumbrances. No Borrower shall notshall, and shall not permit any Subsidiary toeither directly or indirectly, create, incur, assume, incur or suffer or permit to exist any security interest, mortgage, pledge, lien, Lien or charge or other encumbrance of any nature whatsoever on any of its assets kind or properties, including character upon the Collateral, whether owned at the date hereof or hereafter acquired except: :
(a) Liens created pursuant to the security interests and liens Loan Documents on behalf of Collateral Agent the Agent, for itself and the benefit of the Lenders; ;
(b) Liens for or priority claims imposed by law which are incidental to the conduct of business or the ownership of properties and assets (including mechanic’s, warehousemen’s, attorneys’ and statutory and contractual landlords’ liens) and deposits, pledges, liens to secure statutory obligations, surety or appeal bonds or other liens of like general nature incurred in the ordinary course of business and not in connection with the borrowing of money; provided, that in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith and adequate reserves have been set up by the Borrowers or their Subsidiaries in accordance with GAAP, as the case may be;
(c) Liens securing the payment of taxes, assessments and governmental charges or levies incurred in the ordinary course of business, either (i) not yet overdue delinquent, or the validity of which are (ii) being contested in good faith by appropriate legal or administrative proceedings diligently pursued and available as to Borrower which the Borrowers or such any Subsidiary, as the case may be and with respect to which adequate reserves be, shall have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which books adequate reserves have been set aside on its books; (d) zoning restrictionsin accordance with GAAP, easementsand so long as .during the period of any such contest, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon shall suffer no loss of any privilege of doing business or materially impair any other right, power or privilege necessary or material to the value operation of its business;
(d) the real property which may be subject thereto; Lien of Bank of America, N.A. on deposit account number 8666827899 opened by the Borrower with Bank of America, N.A.;
(e) purchase money security interests extensions, renewals and replacements of Liens referred to in Equipment paragraphs (including Capital Leasesa) through (d) of this Section 8.2; provided, however, that any such extension, renewal or replacement Lien shall be limited to the property or assets covered by the Lien extended, renewed or replaced and purchase money mortgages on real estate that the obligations secured by any such extension, renewal or replacement Lien shall be in an amount not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other greater than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost original amount of the Equipment obligations secured by the Lien extended, renewed or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may bereplaced; and
(f) liens or rights the Lien of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash Citibank filed with the owner or lessor Delaware Department of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens State – initial filing number 525267899 — which shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; removed within ninety (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (3090) days immediately preceding following the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateClosing Date.
Appears in 2 contracts
Sources: Credit Agreement (Lawson Products Inc/New/De/), Credit Agreement (Lawson Products Inc/New/De/)
Encumbrances. Each Borrower and each Guarantor shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the CollateralCollateral or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to such assets or properties, except: :
(a) the security interests and liens of Administrative and Collateral Agent Agent, for itself and the ratable benefit of Lenders; the Lenders and Bank Product Providers;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, such Guarantor or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, such Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured or bonded and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, such Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, such Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests secure Indebtedness permitted under Sections 9.9(a) and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; 9.9(c) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; Intentionally Omitted;
(g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto;
(h) renewals and extensions of any of the foregoing security interests and liens so long as the aggregate principal amount of the Indebtedness (plus any accrued and unpaid fees and interest), if any, secured thereby is not increased and such renewal or extension does not encumber additional assets of such Borrower, such Guarantor or such Subsidiary;
(i) leases or subleases granted to third Persons that do not materially interfere with the conduct of the business of such Borrower, such Guarantor or such Subsidiary;
(j) security interests in and liens on property or assets acquired pursuant to an acquisition permitted by Section 9.10 hereof, or on property or assets of a Person in existence at the time such Person is acquired pursuant to an acquisition permitted by Section 9.10 hereof so long as: (i) any Indebtedness that is secured by such security interests and liens is otherwise permitted under Section 9.9 hereof and (ii) such security interests and liens are not incurred in connection with, or in contemplation of, such acquisition and do not attach to any other asset of any Borrower or any Guarantor or such acquired Person or otherwise violate any of the provisions of this Agreement;
(k) pledges and deposits of cash by any Borrower or any Guarantor after the date hereof in the ordinary course of business and commercially reasonable in connection with workers’ compensation, unemployment insurance and other types of social security benefits or in connection with obligations under Hedging Transactions;
(l) judgments liens arising in connection with legal proceedings that do not constitute an Event of Default; provided, that, (i) such liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been established therefor, (iii) a stay of enforcement of any such liens is in effect and (iv) Administrative and Collateral Agent may establish a Reserve with respect thereto; and
(m) liens on assets other than Accounts, collections on Accounts or Inventory to the Information Certificateextent such liens do not secure obligations in excess of $10,000,000 in the aggregate at any one time outstanding.
Appears in 2 contracts
Sources: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Encumbrances. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or Lien with respect to any Collateral, except the following (“Permitted Liens”):
(a) the security interests and liens of Collateral Liens granted to Agent for itself and the benefit of Lenders; the Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
(b) liens Liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such SubsidiaryGuarantor, as the case may be be, and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens Liens (other than liens Liens securing the payment of taxes) arising in the ordinary course of such Borrower’s or such Subsidiary’s, Guarantor’s business to the extent: (i) such liens Liens secure Indebtedness which is not overdue or (ii) such liens Liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, Guarantor in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary Guarantor as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower permitted under Section 9.9(g) or Guarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement or shall have entered into an intercreditor agreement with Agent, in either case, in form and substance satisfactory to Agent;
(h) Liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar Liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such Liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof Liens is in form and substance satisfactory to Administrative Agent effect and (iv) as Agent may establish a Reserve with respect thereto; and
(j) Liens securing the Senior Notes in the Notes Priority Collateral, and in the First Priority Collateral (subject to Agent’s prior Lien therein), in each case subject to the provisions of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingIntercreditor Agreement; and and
(jk) the security interests and liens Liens set forth on Schedule 8.4 to the Information Certificatethis Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Encumbrances. Borrower and each Guarantor shall not, and shall not permit any Subsidiary their Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: EXCEPT:
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's, such Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower Borrower, such Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower Borrower, such Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 1,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; ;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto;
(g) pledges and deposits of cash by any Borrower or Guarantor after the date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the current practices of Borrowers and Guarantors as of the date hereof;
(h) pledges and deposits of cash by any Borrower or Guarantor after the date hereof to secure the Information Certificateperformance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of Borrowers and Guarantors as of the date hereof; PROVIDED, THAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Lender;
(i) liens arising from leases permitted hereunder and the precautionary Uniform Commercial Code financing statement filings in respect thereof; and
(j) liens on assets of Borrower, Guarantors or their Subsidiaries (other than Collateral) not otherwise permitted above, that secure obligations otherwise permitted hereunder not in excess of $100,000 in the aggregate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Anvil Holdings Inc), Loan and Security Agreement (Anvil Knitwear Inc)
Encumbrances. The Borrower shall not, and shall not permit any Subsidiary its Subsidiaries to, create, incur, assume, suffer assume or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever Lien on any of its assets or propertiesproperty, including other than (i) such Liens as existed on the Collateral, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of Lendersdate hereof; (bii) liens securing the payment of taxes, either Liens imposed by any governmental authority for any Taxes not yet overdue due and delinquent or the validity of which are being contested in good faith faith; (iii) Liens granted after the date hereof to secure Permitted Secured Debt and Permitted Subordinated Debt incurred under or assumed by appropriate proceedings diligently pursued and available to the Borrower or its Subsidiaries after the date hereof under Section 6.2(1); (iv) Liens existing on any property or assets prior to the acquisition thereon by the Borrower or any of its Subsidiaries, provided that such SubsidiaryLien was not created in contemplation of, as and the case may be and with principal amount secured has not increased in contemplation of or since, such acquisition; (v) any Lien in respect of any interest rate swap, option, cap, collar or floor agreement or any foreign currency swap agreement or other similar agreement or arrangement designed to protect the Borrower or any of its Subsidiaries against fluctuations in interest or foreign currency rates or in respect of any commodity option, swap or in the price of such commodity or in respect of hedging any similar risk to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising Issuer or any Subsidiary is exposed in the ordinary course of Borrower’s its business; (vi) any Lien arising under any retention of title, hire purchase, consignment or such Subsidiary’s business conditional sale arrangement (including any finance lease) or arrangements having similar effect in respect of goods supplied to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement any of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower Subsidiaries in the ordinary course of business and on the business supplier’s standard or usual terms and not arising as a result of Borrower to secure any default or omission by the performance by Borrower Issuer or any of its obligations under the terms Subsidiaries; or (vii) any Lien arising by operation of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowlaw, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall which was not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required contemplated by the other party to Borrower or any of its Subsidiaries (collectively, the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.“Permitted Encumbrances”);
Appears in 2 contracts
Sources: Senior Unsecured Convertible Debenture (Lifezone Metals LTD), Senior Unsecured Convertible Debenture (Lifezone Metals LTD)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; the Secured Parties;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and deposits of cash by any Borrower or Guarantor after the date hereof in the aggregate at ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any time outstanding so long as such interests and mortgages do not apply Borrower or Guarantor after the date hereof to any property secure the performance of Borrower tenders, bids, leases, trade contracts (other than for the Equipment repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or real estate so acquiredGuarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance reasonably satisfactory to Agent;
(h) liens arising from (i) operating leases and the indebtedness secured thereby does precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not exceed owned by any Borrower or Guarantor located on the cost premises of such Borrower or Guarantor (but not in connection with, or as part of, the Equipment financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or real estate so acquired, Guarantor and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; precautionary UCC financing statement filings in respect thereof;
(fi) liens or rights of setoffs or setoff against credit balances of Borrowers with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrower with in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrowers, pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of Borrowers to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks; ;
(gj) deposits statutory or common law liens or rights of cash setoff of depository banks with respect to funds of Borrowers or Guarantors at such banks to secure fees and charges in connection with returned items or the standard fees and charges of such banks in connection with the owner deposit accounts maintained by Borrowers and Guarantors at such banks (but not any other Indebtedness or lessor obligations);
(k) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowDefault, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and ;
(jl) the security interests and liens set forth on Schedule 8.4 which are not permitted by the other provisions of Section 9.8 above;
(m) non-consensual security interests and liens which are not permitted by the other provisions of Section 9.8 above to secure Indebtedness and other liabilities in an amount not to exceed $100,000 in the aggregate;
(n) liens of the trustee for the holders of the Specified Subordinated Indebtedness securing the Specified Subordinated Indebtedness, provided that such liens are junior in rank to the Information Certificatesecurity interests and liens of Agent for itself and the benefit of the Secured Parties and subject to the Subordination Provisions; and
(o) the security interests and liens identified on Schedule 1.6 hereof, provided that Borrowers are in compliance with Section 9.27(a).
Appears in 2 contracts
Sources: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: EXCEPT:
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be Guarantor and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s Guarantor's business (including carriers', warehousemen's, materialmen's and mechanics' liens) to the extent: (i) such liens secure Indebtedness or obligations which is are not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryGuarantor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) pledges and deposits of cash by any Borrower or Guarantor after the date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the current practices of Borrowers and Guarantors as of the date hereof;
(e) pledges and deposits of cash by Borrowers after the date hereof to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of Borrowers and Guarantors as of the date hereof; PROVIDED, THAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance reasonably satisfactory to Lender;
(f) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by a Borrower located on the premises of such Borrower (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of Borrowers and the precautionary UCC financing statement filings in respect thereof;
(g) zoning restrictions, easements, reservations, exceptions, encroachments, rights of way, licenses, covenants and other restrictions or encumbrances affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business businesses of Borrower or such Subsidiary Borrowers as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(eh) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate (including improvements thereto) arising after the date hereof in the aggregate for Borrowers not to exceed $15,000,000 in the aggregate at any time outstanding 3,000,000 so long as such security interests and mortgages do not apply to any property of Borrower Borrowers other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; ;
(fi) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees the pledge of, and chargebacks; (g) deposits of cash with security interest in, the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower Senior Deferred Coupon Note Collateral to secure the performance Indebtedness of Waxman Industries evidenced by Borrower of its obligations or arising under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Senior Deferred Coupon Notes permitted under Section 9.9(d9.9 below;
(j) belowjudgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, providedPROVIDED, thatTHAT, (i) such liens shall be are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of enforcement of any such liens is in effect, and (iv) any such liens are junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens of Lender;
(k) liens and security interests to secure Refinancing Indebtedness to the extent permitted under Section 9.9(k) below; and
(l) security interests and liens in existence on the date hereof which are set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Encumbrances. Borrower shall not, and Debtors shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersSecured Party; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be Debtors and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s Debtors’ business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryDebtors, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its their books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary Debtors as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 50,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower Debtors other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate4.4 hereto.
Appears in 2 contracts
Sources: General Security Agreement (SMTC Corp), General Security Agreement (SMTC Corp)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 9.9(b) hereof; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees arising from operating leases and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower precautionary UCC financing statement filings in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingrespect thereof; and (jg) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 2 contracts
Sources: Loan and Security Agreement (American Biltrite Inc), Loan and Security Agreement (Congoleum Corp)
Encumbrances. The Borrower shall not, and shall not permit any Subsidiary tocause each of its Subsidiaries to not, either directly or indirectly, create, incur, assume, incur or suffer or permit to exist any security interest, mortgage, pledge, lien, Lien or charge or other encumbrance of any nature whatsoever on kind or character upon any asset of its assets the Borrower or propertiesany Subsidiary, including whether owned at the Collateral, date hereof or hereafter acquired except: :
(a) the security interests and liens of Collateral Agent Liens for itself and the benefit of Lenders; (b) liens securing the payment of taxes, either assessments or other governmental charges not yet overdue due or the validity of which are being contested in good faith by appropriate proceedings diligently pursued in such a manner as not to make the property forfeitable;
(b) Liens or charges incidental to the conduct of its business or the ownership of its property and available assets which were not incurred in connection with the borrowing of money or the obtaining of an advance or credit, and which do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of its business;
(c) Liens arising out of judgments or awards against the Borrower with respect to Borrower which it shall concurrently therewith be prosecuting a timely appeal or such Subsidiary, as the case may be proceeding for review and with respect to which adequate reserves it shall have been set aside secured a stay of execution pending such appeal or proceedings for review;
(d) pledges or deposits to secure obligations under worker's compensation laws or similar legislation;
(e) good faith deposits in connection with lending contracts or leases to which the Borrower is a party;
(f) deposits to secure public or statutory obligations of the Borrower;
(g) Liens, including the Senior Mortgages, existing on its booksthe date hereof and disclosed on the financial statements referred to in Section 7;
(h) Liens securing obligations permitted under Section 8.1(f), Section 8.1(g) and/or Section 8.1(h); and
(ci) non-consensual statutory liens (other than liens securing Liens granted to the payment Bank. Without limiting the generality of taxes) arising in the ordinary course of foregoing, Borrower shall not, and shall cause each Subsidiary not to, mortgage or otherwise encumber Borrower’s 's or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue 's fee or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere leasehold interest in any material respect with the use of such real property Mortgaged Premises or ordinary conduct of the business of Borrower or such Subsidiary Other Property, except as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not expressly permitted pursuant to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower above or as consented to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof Bank in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatewriting.
Appears in 2 contracts
Sources: Loan and Security Agreement (Arlington Hospitality Inc), Loan and Security Agreement (Arlington Hospitality Inc)
Encumbrances. Except for those Liens presently in existence and reflected in either the Borrower’s or its Subsidiaries’ financial statements referred to in Section 7.16 or security interests granted in the Security Documents or in the Intercompany Financing Documents, none of the Borrower nor any of its Subsidiaries shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance Lien of any nature whatsoever on or with regard to any of its assets or properties(including, including without limitation, the Collateral, except) other than: (a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens Liens securing the payment of taxes, either not yet overdue due or the validity of which are is being contested in good faith by appropriate proceedings diligently pursued proceedings, and available as to which the Borrower or such Subsidiary, its Subsidiaries (as the case may be and with respect to which adequate reserves be) shall, if appropriate under GAAP, have been set aside on its booksbooks and records adequate reserves; (cb) non-consensual statutory liens Liens securing deposits under workers’ compensation, unemployment insurance, social security and other similar laws, or securing the performance of bids, tenders, contracts (other than liens for the repayment of borrowed money) or leases, or securing indemnity, performance or other similar bonds for the payment performance of taxesbids, tenders, contracts (other than for the repayment of borrowed money) arising or leases, or securing statutory obligations or surety or appeal bonds, or securing indemnity, performance or other similar bonds in the ordinary course of the Borrower’s or such Subsidiary’s its Subsidiaries’ business to (as the extent: case may be); (ic) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured Liens granted under the Bond Documents and being defended at the sole cost and expense and at the sole risk Liens in favor of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to Agent securing the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its booksLiabilities; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of the Borrower’s or any of its Subsidiaries’ real property, and other Liens on property which are subordinate to the Liens of the Agent securing the Liabilities and which do not interfere not, in any material respect with the determination of the Required Lenders (i) materially impair the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or (ii) materially impair lessen the value of such property for the real property purposes for which may be subject theretothe same is held by the Borrower or any of its Subsidiaries; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not capitalized leases securing indebtedness permitted to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may bebe incurred under Section 10.4(d); (f) liens or rights in the case of setoffs or credit balances the Borrower, Liens securing the interests of Borrower with Credit Card Processors as a result of fees and chargebacksany broker in any Margin Account; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course case of the business of Borrower Borrower, Liens securing indebtedness permitted to secure the performance by Borrower of its obligations be incurred under the terms of the lease for such premisesSection 10.4(f); and (h) liens on assets of Borrower to secure indebtedness of Borrower Liens permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate7.29.
Appears in 2 contracts
Sources: Credit Agreement (Leucadia National Corp), Credit Agreement (National Beef Packing Co LLC)
Encumbrances. The Borrower shall notwill not create or suffer to exist, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets Subsidiaries to create or suffer to exist, any Encumbrance or any other type of preferential arrangement, upon or with respect to any of its properties, including whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure or provide for the Collateralpayment of any Indebtedness of any Person, except: other than:
(a) the purchase money liens or purchase money security interests and liens of Collateral Agent for itself and upon or in any property acquired or held by the benefit of Lenders; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising any Subsidiary in the ordinary course of Borrower’s or such Subsidiary’s business to secure the extent: purchase price of such property or to secure indebtedness incurred solely for the purpose of financing the acquisition of such property, so long as such indebtedness does not exceed 100% of the purchase price of such property;
(b) Encumbrances existing on such property at the time of the acquisition of such property or the acquisition of such Subsidiary (other than any such Encumbrance created as a result of such acquisition);
(c) Permitted Encumbrances; or
(d) Extensions or renewals of any Encumbrance described in clauses (a) through (c) above, provided, that (i) any such liens secure Indebtedness which is not overdue extension or renewal shall be limited to the property theretofore subject to such Encumbrance and (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk principal amount of the insurer or being contested Indebtedness secured by such Encumbrance shall not be increased; provided, that the aggregate principal amount of Indebtedness secured by Encumbrances referred to in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; clauses (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasesa) and purchase money mortgages on real estate (b) above shall not to exceed $15,000,000 in the aggregate 5,000,000 at any time outstanding so long as such interests and mortgages do not apply to (it being expressly agreed that any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, refinanced Indebtedness shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificateconsidered new Indebtedness hereunder).
Appears in 2 contracts
Sources: Credit Agreement (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
Encumbrances. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryGuarantor, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s or such SubsidiaryGuarantor’s business to the extent: (i) such liens secure Indebtedness obligations which is are not overdue or (ii) such liens secure Indebtedness obligations relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryGuarantor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary or, Guarantor as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) to secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and purchase money mortgages on real estate not to exceed $15,000,000 deposits of cash by any Borrower or Guarantor after the date hereof in the aggregate at ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any Borrower or Guarantor after the date hereof to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or Guarantor as of the date hereof;
(h) liens arising from (i) any Lease Agreement (or sublease with respect thereto) and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time outstanding so long as to time in the ordinary course of business and consistent with current practices of such interests Borrower or Guarantor and mortgages the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not apply to any property constitute an Event of Borrower Default, provided, that, (i) adequate reserves or other than the Equipment or real estate so acquiredappropriate provision, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquiredif any, as are required by GAAP have been made therefor, (ii) such judgment or lien shall be effectively stayed or bonded within thirty (30) days after the case date such judgment or lien first arose and (iii) Agent may be; establish a Reserve with respect thereto;
(fj) liens or rights of setoffs or setoff against credit balances of Borrower Borrowers and Guarantors with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrowers or Guarantors in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrowers or Guarantors, pursuant to the Credit Card Agreements to secure the obligations of Borrowers and Guarantors to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks; ;
(gk) deposits liens in favor of JPMorgan Chase Bank (“Chase”) and/or ▇▇▇▇▇ Fargo Bank (“▇▇▇▇▇”) on cash collateral deposited with Chase and/or ▇▇▇▇▇ on or prior to the owner date hereof in an aggregate amount not to exceed $36,837,000 to secure the letters of credit issued by Chase and/or ▇▇▇▇▇ which are listed on Schedule 9.9 to the Information Certificate;
(l) security interests in or lessor liens on Equipment and Real Property of retail store locations leased Borrowers and operated Guarantors (other than Equipment or Real Property included in the Borrowing Base) or the Capital Stock of any Propco to secure Indebtedness permitted under Section 9.9(h) hereof;
(m) leases or subleases of Real Property granted by any Borrower or Guarantor in the ordinary course of business and consistent with past practice (i) to its franchisees and (ii) to any Person so long as any such leases or subleases pursuant to this clause (ii) do not interfere in any material respect with the use of such Real Property or the ordinary conduct of the business of such Borrower or Guarantor as presently conducted thereon or materially impair the value of such Real Property;
(n) security interests in and liens on the assets of the Petro Companies (including, without limitation, the Petro Indenture Cash Collateral) and the Capital Stock in Petro in favor of the Petro Indenture Trustee to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(j) hereof; provided, that, such security interests and liens on the Petro Indenture Cash Collateral shall be terminated and released by no later than May 15, 2008 and such security interests and liens on the assets of the Petro Companies (iother than the Petro Indenture Cash Collateral) and the Capital Stock in Petro shall be terminated on the Petro Existing Security Agreement Termination Date;
(o) security interests in and liens on the assets of the Petro Companies (excluding the Petro Indenture Cash Collateral) and the Capital Stock in Petro in favor of ExxonMobil to secure trade liabilities owing by the Petro Companies to ExxonMobil in an aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate to exceed $2,500,00015,000,000; provided, (ii) as of each of the thirty (30) days immediately preceding the date of that, such pledge or deposit security interests and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) liens shall be required by terminated and released on the other party to the Hedging Petro Existing Security Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and Termination Date; and
(iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jp) the security interests and liens set forth on Schedule 8.4 to the Information CertificateCertificate which are not otherwise permitted under this Section 9.8 above.
Appears in 2 contracts
Sources: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Encumbrances. No Borrower or Guarantor shall, nor shall not, and shall not it permit any Subsidiary of its Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent Agent, for itself and the ratable benefit of Lenders; the Lenders and the Bank Product Providers;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Guarantor or its Subsidiary, as the case may be be, and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s ’s, such Guarantor’s, or such Subsidiary’s ’s, business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, such Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, such Guarantor or such Subsidiary Subsidiary, as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) to secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and purchase money mortgages on real estate not to exceed $15,000,000 deposits of cash by such Borrower or Guarantor after the date hereof in the aggregate at any time outstanding so long ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by such interests and mortgages do not apply Borrower or Guarantor after the date hereof to any property secure the performance of Borrower tenders, bids, leases, trade contracts (other than for the Equipment repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the practices of such Borrower or real estate so acquiredGuarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the indebtedness secured thereby does precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not exceed owned by a Borrower or Guarantor located on the cost premises of such Borrower or Guarantor (but not in connection with, or as part of, the Equipment financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or real estate so acquired, Guarantor and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; precautionary UCC financing statement filings in respect thereof;
(fi) liens or rights of setoffs setoff or credit balances of such Borrower or Guarantor with Credit Card Processors Issuers, but not liens on or rights of setoff against any other property or assets of such Borrower or Guarantor pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of such Borrower or Guarantor to the Credit Card Issuers as a result of fees and chargebacks; ;
(gj) deposits of cash with the owner or lessor of retail store locations premises leased and operated by such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor to secure the performance by such Borrower or Guarantor of its obligations under the terms of the lease for such premises; ;
(hk) judgments and other similar liens on assets arising in connection with court proceedings that do not constitute an Event of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowDefault, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as Agent may establish a Reserve with respect thereto;
(l) the security interests and liens in favor of New Term Loan Agent to secure Indebtedness permitted by Section 9.9(i) hereof and that are subject to the terms and conditions of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingNew Term Loan Intercreditor Agreement; and and
(jm) the security interests and liens set forth on Schedule 8.4 to the Information CertificateCertificates.
Appears in 2 contracts
Sources: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
Encumbrances. Each US Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance Lien of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens Liens of Collateral Agent for itself and the benefit of LendersAgent; (b) liens Liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be it and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens Liens (other than liens Liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s its business to the extent: (i) such liens Liens secure Indebtedness indebtedness which is not overdue or (ii) such liens Liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiaryit, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the its business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Liens securing any Capital Leases) Expenditures permitted by Section 8.24; and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; the Liens set forth on Schedule 7.4 hereto (g) deposits of cash with except to the owner or lessor of retail store locations leased and operated by Borrower in extent that Tranche B Agent and/or Agent requires the ordinary course discharge thereof prior to the advance of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior initial Loans and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereunder).
Appears in 2 contracts
Sources: Us Loan Agreement (SMTC Corp), Us Loan Agreement (SMTC Corp)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: :
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) security deposits in the ordinary course of business;
(d) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: :
(i) such liens secure Indebtedness indebtedness which is not overdue for more than thirty (30) days or is being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books; or
(ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer (subject to applicable deductibles) or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(de) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(ef) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; ;
(g) deposits of cash with liens constituting the owner or lessor of retail store locations leased sale and operated by Borrower in the ordinary course assignment of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; RDA Claims;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto; and
(i) liens created by the Seller Guaranty so long as such liens are subject to and governed by the Information CertificateSubordination Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Source Interlink Companies Inc), Loan and Security Agreement (Source Interlink Companies Inc)
Encumbrances. Borrower and Guarantors shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lenders and the Bank Product Providers (but only to the extent provided for herein);
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue delinquent or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower Borrower, any Guarantor or such any Subsidiary, as the case may be be, and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s, any Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower Borrower, any Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower Borrower, any Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests or other security interests in Equipment (including Capital Leases) and purchase money mortgages or other mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding secure Indebtedness permitted under Section 9.9(b) hereof so long as such security interests and mortgages do not apply to any property of Borrower Borrower, any Guarantor or any Subsidiary other than the Equipment or real estate Real Property so acquiredacquired (and the proceeds thereof), and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate Real Property so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment constructed, remodeled or real estate so acquiredimproved, as the case may be; , and such security interests are granted within 180 days of the date of such acquisition or completion of construction, remodeling or improvement of such Equipment or Real Property, as the case may be;
(f) pledges and deposits of cash by Borrower or any Guarantor after the date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits;
(g) pledges and deposits of cash by Borrower or any Guarantor after the date hereof to secure the performance of tenders, bids, leases, contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business of Borrower or such Guarantor; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by Borrower or Guarantor located on the premises of Borrower or any Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of Borrower or such Guarantor and the precautionary UCC financing statement filings in respect thereof;
(i) liens or rights of setoffs or setoff against credit balances of Borrower with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrower in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrower, pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of Borrower to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks; ;
(gj) statutory or common law liens or rights of setoff of depository banks with respect to funds of Borrower at such banks to secure fees and charges in connection with returned items or the standard fees and charges of such banks in connection with the deposit accounts maintained by Borrower at such banks (but not any other Indebtedness or obligations);
(k) deposits of cash with the owner or lessor of retail store locations premises leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its their respective obligations under the terms of the lease for such premises; ;
(hl) judgments and other similar liens on assets arising in connection with court proceedings that do not constitute an Event of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereofDefault; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or lien is imposed with the right to demand such pledge or depositperiod specified in Section 10.1(d) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof hereof in form and substance satisfactory to Administrative Agent effect and (iv) Agent may establish a Reserve with respect thereto;
(m) the security interests and liens upon the Wholesale Collateral in favor of Wholesale to secure Indebtedness owing GE under the Wholesale Agreements as permitted in Section 9.9 (g) hereof; provided, that, such security interests and liens shall at all times be subject to the terms of the date Wholesale Finance Intercreditor Agreement;
(n) the security interests and liens upon the Frigidaire Consignment Collateral in favor of Frigidaire to secure Indebtedness owing Frigidaire under the Frigidaire Consignment Collateral as permitted in Section 9.9(i) hereof; provided, that, such pledge or deposit security interests and after giving effect theretoliens shall at all times be subject to the terms of the Frigidaire Consignment Intercreditor Agreement;
(o) the liens of customs brokers on Inventory of Borrower incurred in the ordinary course of business in the connection with the importation of Inventory; provided, no Default or Event of Default shall exist or have occurred and be continuingthat, such Inventory is not Eligible Inventory; and and
(jp) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Hhgregg, Inc.), Loan and Security Agreement (HHG Distributing, LLC)
Encumbrances. The Borrower shall notwill not create or suffer to exist, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets Subsidiaries to create or suffer to exist, any Encumbrance or any other type of preferential arrangement, upon or with respect to any of its properties, including whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure or provide for the Collateralpayment of any Indebtedness of any Person, except: other than (a) Encumbrances created under the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Loan Documents, (b) purchase money liens securing or purchase money security interests upon or in any property acquired or held by the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising any Subsidiary in the ordinary course of Borrower’s or such Subsidiary’s business to secure the extent: purchase price of such property or to secure indebtedness incurred solely for the purpose of financing the acquisition of such property, so long as such indebtedness does not exceed 100% of the purchase price of such property, (c) Encumbrances existing on such property at the time of the acquisition of such property or the acquisition of such Subsidiary (other than any such Encumbrance created as a result of such acquisition), (d) Permitted Encumbrances, or (e) extensions or renewals of any Encumbrance described in clauses (b) through (d) above, provided, that (i) any such liens secure Indebtedness which is not overdue extension or renewal shall be limited to the property theretofore subject to such Encumbrance, (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk principal amount of the insurer or being contested Indebtedness secured by such Encumbrance shall not be increased and (iii) the aggregate principal amount of Indebtedness secured by Encumbrances referred to in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; clauses (b) through (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do above shall not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate 1,000,000 at any time outstanding so long as such interests and mortgages do not apply to (it being expressly agreed that any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability refinanced Indebtedness shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificateconsidered new Indebtedness hereunder).
Appears in 2 contracts
Sources: Credit Agreement (Natural Resource Partners Lp), Credit Agreement (Natural Resource Partners Lp)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: (a) the security interests and liens of Collateral Agent for itself and Lender (and, in the benefit case of LendersBank Products, any Affiliate of Lender); (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be its Subsidiaries and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s in Subsidiaries’ business to the extent: (i) such liens secure Indebtedness obligations which is are not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiaryits Subsidiaries, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary its Subsidiaries as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 estate, in either case securing the aggregate at any time outstanding cost of the acquisition or improvement thereon, so long as such security interests and mortgages do not apply to any property of Borrower or its Subsidiaries other than the Equipment or real estate so acquiredacquired or improved, and the indebtedness secured thereby does not exceed the cost of the acquisition or improvement of such Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquiredestate, as the case may be; (f) liens incurred or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower made in the ordinary course of the business in connection with workers’ compensation, unemployment insurance and other types of Borrower social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bond and other similar obligations (exclusive of obligations for the payment of borrowed money); (g) liens and security interests on any asset acquired by Borrower or any of its obligations under Subsidiaries after the terms date hereof if (i) such lien or security interest exists at the time of such acquisition, (ii) such lien or security interest was not created in contemplation of such acquisition, and (iii) such lien or security interest does not extend to or cover any property other than the lease for assets acquired and improvements to such premisesassets; (h) liens on assets any extension, renewal or replacement, in whole or in part, of Borrower to secure any lien, security interest or other encumbrance described in clauses (a), (e), and (g) herein, so long as the amount of collateral or the principal amount of indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agentso secured is not increased thereby; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to in the Information Certificate; and (j) the security interests and liens in the Collateral granted to the New Notes Trustee to secure indebtedness under the New Notes and the New Notes Indenture, which shall be subject to and in accordance with the New Notes Intercreditor Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)
Encumbrances. No Borrower or Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be Guarantor and with respect to which adequate reserves have been set aside on its books; (c) non-consensual consensual, inchoate and unperfected workers', mechanics', suppliers, or similar statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s Guarantor's business to the extent: (i) such liens secure Indebtedness indebtedness or obligations which is not overdue or (ii) such liens secure Indebtedness indebtedness or obligations relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryGuarantor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of a Borrower or such Subsidiary Guarantor as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) pledges or deposits securing obligations under worker's compensation, unemployment insurance, social security or public liability laws or similar legislation; (f) pledges or deposits securing bids, tenders, contracts (other than contracts for the payment of money) or leases to which any Borrower or any Guarantor thereof is a party as lessee made in the ordinary course of business; (g) deposits securing statutory obligations of any Borrower or any Guarantor, (h) carriers', warehousemen's or other similar possessory liens arising in the ordinary course of business and securing liabilities not past due in an outstanding aggregate amount not in excess of $50,000 at any time; (i) deposits securing, or in lieu of, surety, appeal or customs bonds in proceedings to which any Borrower or any Guarantor is a party; (j) any attachment or judgment lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay and provided that no action has been taken to enforce such lien when a stay is not in effect; (k) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 7,500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of any Borrower or Guarantor other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jl) the security interests and liens set forth on Schedule 8.4 hereto; and (m) other liens and security interests securing indebtedness otherwise permitted hereby in an aggregate principal amount not exceeding $100,000 at any time, so long as such liens and security interests do not attach to the Information CertificateCollateral unless the holder thereof has entered into an intercreditor agreement with Lender satisfactory in form and substance to Lender. Lender agrees that Sections 4.13 and 4.14 of the Indenture, restricting, respectively, liens and dividends and distributions, do not constitute breaches of this Section 9.8.
Appears in 1 contract
Sources: Loan and Security Agreement (Decorative Home Accents Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary (excluding Foreign Subsidiaries) to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: EXCEPT:
(a) the liens, security interests and liens hypothecs of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, as the case may be Subsidiary and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Guarantor's or Subsidiary’s 's business (including carriers', warehousemen's, materialmen's and mechanics' liens) to the extent: (i) such liens secure Indebtedness or obligations which is are not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryGuarantor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) pledges and deposits of cash by any Borrower, Guarantor or Subsidiary after the date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the current practices of Borrowers, Guarantor or such Subsidiary as of the date hereof;
(e) zoning restrictions, easements, licenses, covenants and other restrictions or encumbrances affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business businesses of Borrower or such Subsidiary Borrowers as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(ef) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate Real Property in the aggregate for all Borrowers, Guarantor and their respective Subsidiaries not to exceed $15,000,000 5,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower Borrowers, Guarantor or such Subsidiaries other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; ;
(g) security interests and liens upon the Collateral granted by Play By Play in favor of the holders of the Subordinated Notes pursuant to the terms of the Subordinated Creditor Agreements (as in effect on the date hereof), respectively, to secure the Indebtedness of Borrower to the holders of the Subordinated Notes permitted under Section 9.9 (f) hereof, which security interests and liens on the Collateral shall be, in all respects, subject and subordinated in priority to the security interests and liens of Lender as set forth in the Intercreditor and Subordination Agreement, in form and substance satisfactory to Lender;
(h) security interests and liens in existence on the date hereof which are set forth on Schedule 8.4 hereto;
(i) pledges and deposits of cash by any Borrower to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of Borrowers as of the date hereof; PROVIDED, THAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Lender; and
(j) rights of setoffs setoff of any Credit Card Issuer or Credit Card Processor against amounts owing to any Borrower, Guarantor or Subsidiary or credit balances of Borrower any Borrower, Guarantor or Subsidiary with any Credit Card Processors Issuer or Credit Card Processor, but not liens on or rights of setoff against any other property or assets of such Borrower, Guarantor or Subsidiary pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of such Borrower, Guarantor or Subsidiary to such Credit Card Issuer or Credit Card Processor as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Play by Play Toys & Novelties Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 9.9(b) hereof; (f) liens or rights of setoffs or credit balances the mortgage and lien upon, and security interest in, the Real Property of Borrower with Credit Card Processors located in Freehold, New Jersey described on Scheduled 9.8(f) hereof pursuant to the Fixed Rate NJEDA Bond Agreements as a result of fees and chargebacks; (g) deposits of cash with in effect on the owner or lessor of retail store locations leased and operated by Borrower in date hereof to secure the ordinary course of the business contingent reimbursement obligations of Borrower to secure Banque Nationale de Paris, Houston Agency as the performance by Borrower issuer of its obligations under Fixed Rate NJEDA Bond Letter of Credit and the terms of NJEDA pursuant to such agreements to the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower extent permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent 9.9 and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. No Borrower shall notshall, and shall not nor permit any Subsidiary of its Subsidiaries to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the CollateralCollateral or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 9.9(b) hereof; (f) senior security interests and liens in or rights against the assets of setoffs Borrowers or credit balances of Borrower with Credit Card Processors the Domestic Subsidiaries to secure the Obligations under and as a result of fees and chargebacksdefined in the Congress Agreement; (g) deposits of cash with security interests and liens in or against the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course assets of the business of Borrower Direct Foreign Subsidiaries or MB Quart GmbH, a German GmbH to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(f) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jh) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, exceptEXCEPT: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of be but provided that the Borrower may complete a sale and leaseback arrangement for the building located in Kitchener, Ontario on reasonable commercial terms, with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate prior written notice to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingLender; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information CertificateSchedule8.4 hereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, the Collateral (including the Collateralitems described in Sections 5.1 and 5.2 whether or not the security interest has attached), except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) subordinated liens on assets the Collateral in favor of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, vendors provided such liens shall be junior and subordinate are subordinated to the liens of Collateral Agent Lender on terms and conditions and subject to agreements acceptable to Collateral Agent; (i) pledges and deposits of cashLender, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Musicland Stores Corp)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary toensure that each Obligor does not, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance Lien of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens Liens of Canadian Collateral Agent for itself and the benefit of Lendersand/or US Collateral Agent; (b) liens Liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiaryany Obligor, as the case may be applicable, and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens Liens (other than liens Liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiaryany Obligor’s business business, as applicable, to the extent: (i) such liens Liens secure Indebtedness indebtedness which is not overdue or (ii) such liens Liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryObligor, as applicable, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary Obligor, as applicable, as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed exceed, individually, $15,000,000 250,000 and, in the aggregate aggregate, $1,000,000 at any time outstanding for Borrower and Obligors so long as such security interests and mortgages do not apply to any property of Borrower or any Obligor other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens Liens set forth on Schedule 8.4 7.4 hereto (except to the Information Certificateextent that Lender required the discharge thereof prior to the advance of the initial Loans pursuant to the Original Credit Agreement); and (g) Liens to secure Permitted Inter-Company Debt.
Appears in 1 contract
Encumbrances. Neither Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be Borrowers and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of a Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrowers, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary Borrowers as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 50,000.00 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower Borrowers other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto including the security interest granted to the Information CertificateChase Manhattan Bank ("Chase") in certain cash and investment property to secure the credit facilities described on Schedule 9.9.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultralife Batteries Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, exceptEXCEPT: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in i good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted conducte thereon or materially impair the value of the real property which may be subject thereto; (e) in addition to encumbrances permitted under section 9.8(f), purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 300,000 (including existing indebtedness to Trustco Bank as set forth in subsection (f) below) in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) the liens or rights and security interests of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with Trustco Bank on the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure consisting of machinery and equipment, so long as the indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall secured thereby does not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing167,000; and (jg) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Planet Entertainment Corp)
Encumbrances. Borrower shall not, and nor shall not it cause, permit or allow any Subsidiary to, to directly or indirectly create, assume, incur, assume, suffer or permit to exist any pledge, encumbrance, security interest, mortgageassignment, pledge, lien, lien or charge or other encumbrance of any nature whatsoever kind or character on any of its assets or propertiesassets, including excepting only liens existing on the Collateraldate hereof as shown on the Financial Statements; provided, except: (a) however, that the foregoing shall not restrict nor operate to prevent:
5.1.2.1. liens arising by statute in connection with worker’s compensation, unemployment insurance, old age benefits, social security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of obligations, taxes, either assessments, statutory obligations or other similar charges, good faith cash deposits in connection with tenders, contracts or leases to which the Borrower or any of its Subsidiaries is a party or other cash deposits in any such foregoing case that is required to be made in the ordinary course of business, provided in each case that the obligation is not yet for borrowed money and that the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate proceedings which prevent enforcement of the matter under contest and adequate reserves have been established therefor;
5.1.2.2. mechanics’, workmen’s, materialmen’s, landlords’, carriers’, or other similar liens arising in the validity ordinary course of business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings diligently pursued which prevent enforcement of the matter under contest;
5.1.2.3. the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any legal proceeding, provided that the aggregate amount of liabilities of the Borrower and available its Subsidiaries secured by a pledge of assets permitted under this subsection, including interest and penalties thereon, if any, shall not be in excess of $10,000,000 at any one time outstanding;
5.1.2.4. liens, charges and encumbrances incidental to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing conduct of the payment business of taxes) arising the Subsidiary Banks incurred in the ordinary course of Borrower’s or such Subsidiary’s business to and not in connection with the extent: (i) such borrowing of money, and liens secure securing Permitted Subsidiary Bank Indebtedness which is not overdue or (ii) such in the ordinary course of business;
5.1.2.5. liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk on property of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or any of its Subsidiaries created solely for the purpose of securing indebtedness permitted by Section 5.1.1.5, representing or incurred to finance, refinance or refund the purchase price of property, provided that no such Subsidiary, in each case prior lien shall extend to the commencement of foreclosure or cover other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate respective property so acquired, and the principal amount of indebtedness secured thereby does not by any such lien shall at no time exceed the cost original purchase price of the Equipment such property;
5.1.2.6. liens to secure public funds or real estate so acquiredother pledges of funds required by law to secure deposits;
5.1.2.7. repurchase agreements, reverse repurchase agreements and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated other similar transactions entered into by Borrower any Subsidiary Bank in the ordinary course of its banking or trust business; and
5.1.2.8. utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in the business of the Borrower to secure the performance by Borrower of or its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateSubsidiaries.
Appears in 1 contract
Sources: Loan and Subordinated Debenture Purchase Agreement (Privatebancorp Inc)
Encumbrances. Each Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: except the following ("Permitted Liens"):
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other government charges or levies, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees specified in any title insurance policy delivered to and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated accepted by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not Mortgage;
(g) security interests in the aggregate exceed $2,500,000, (ii) as of each Inventory of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right Honduras Subsidiaries to demand such pledge or deposit) shall be required by the other party secure Permitted Honduras Working Capital Debt to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and extent permitted under Section 9.9(h) hereof;
(ivh) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 in the trademarks of Borrowers to secure Permitted Trademark Financing Debt to the Information Certificate.extent permitted under Section 9.9(i) hereof;
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: :
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) security deposits in the ordinary course of business;
(d) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: :
(i) such liens secure Indebtedness indebtedness which is not overdue or overdue, or
(ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer (subject to applicable deductibles) or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(de) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(ef) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate, together with the then aggregate purchase money security interests in equipment and purchase money mortgages on real estate outstanding by Wareforce, not to exceed Two Hundred Thousand Dollars ($15,000,000 200,000) in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; ;
(g) deposits the liens and security interests of cash with NationsCredit on the owner or lessor assets of retail store locations leased and operated by Borrower in consisting of Inventory to secure the ordinary course of the business indebtedness of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower NationsCredit permitted under Section 9.9(d) belowERROR! REFERENCE SOURCE NOT FOUND. hereof, providedwhich liens and security interests are, thatin all respects, such liens shall be junior subject and subordinate in priority to the liens and security interests of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party Lender pursuant to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and NationsCredit Intercreditor Agreement; and
(iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jh) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower No Loan Party shall, or shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the security interests and liens of Collateral the Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be Person and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such SubsidiaryPerson’s business to the extent: (i) such liens secure Indebtedness which is not overdue for a period of more than sixty (60) days or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryPerson, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary Person as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any such Person after the owner or lessor of retail store locations leased and operated by Borrower Original Closing Date in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of Borrower to secure the performance by Borrower of its obligations under the terms such Person as of the lease for such premises; Original Closing Date;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents or investment securities cash by Borrower any such Person after the Original Closing Date to secure indebtedness the performance of Borrower permitted under Section 9.9(gtenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Person as of the Original Closing Date provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent in its good faith determination;
(h) hereof; liens arising from (i) operating leases and the precautionary UCC financing statement filings or their foreign equivalents in respect thereof, (ii) equipment or other materials which are not owned by any such Person located on the premises of such Person (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Person and the precautionary UCC financing statement filings or their foreign equivalents in respect thereof and (iii) subleases or license agreements;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and ;
(j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateCertificate as well as any exception to title to the Real Properties appearing on Agent’s policies of title insurance;
(k) pledges of cash or marketable securities of any such Person to secure hedging obligations of such Person made in the ordinary course of business of such Person and to the extent such obligations are permitted under Section 9.9 hereof;
(l) liens on the assets of a Foreign Subsidiary securing Indebtedness of such Foreign Subsidiary to the extent such Indebtedness is permitted under Section 9.9 hereof;
(m) liens on the assets acquired pursuant to a Permitted Acquisition to secure Indebtedness assumed in connection with such Permitted Acquisitions to the extent such Indebtedness is permitted under Section 9.9 hereof; provided, that, (i) such liens were existing prior to the consummation of the Permitted Acquisition, (ii) such liens were not created in contemplation of or in connection with such Permitted Acquisition and (iii) such liens are not on Receivables or Inventory of any Person;
(n) liens securing Refinancing Indebtedness permitted (and defined) under Section 9.9 hereof, but only covering assets which secured the Indebtedness being refinanced; and
(o) junior subordinated liens securing the Indebtedness under the 2004 Second Priority Senior Secured Notes Indenture, which liens shall be subject to the terms and conditions of that certain Intercreditor Agreement dated as of the Effective Date among Agent, Deutsche Bank National Trust Company, Parent and the Subsidiaries of Parent set forth therein, as amended or otherwise modified from time to time pursuant to the terms thereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Delco Remy International Inc)
Encumbrances. Borrower shall not, and nor shall not it cause, permit or allow any Subsidiary to, to directly or indirectly create, assume, incur, assume, suffer or permit to exist any pledge, encumbrance, security interest, mortgageassignment, pledge, lien, lien or charge or other encumbrance of any nature whatsoever kind or character on any of its assets or propertiesassets, including excepting only liens existing on the Collateraldate hereof as shown on the Financial Statements; provided, except: (a) however, that the foregoing shall neither restrict nor operate to prevent:
5.1.2.1. liens arising by statute in connection with worker’s compensation, unemployment insurance, old age benefits, social security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of obligations, taxes, either assessments, statutory obligations or other similar charges, good faith cash deposits in connection with tenders, contracts or leases to which Borrower or any Subsidiary is a party or other cash deposits in any such foregoing case that is required to be made in the ordinary course of business, provided in each case that the obligation is not yet for borrowed money and that the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate proceedings which prevent enforcement of the matter under contest and adequate reserves have been established therefor;
5.1.2.2. mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar liens arising in the validity ordinary course of business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings diligently pursued which prevent enforcement of the matter under contest;
5.1.2.3. the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any legal proceeding, provided that the aggregate amount of liabilities of Borrower and available the Subsidiaries secured by a pledge of assets permitted under this subsection, including interest and penalties thereon, if any, shall not be in excess of $10,000,000 at any one time outstanding;
5.1.2.4. liens, charges and encumbrances incidental to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing conduct of the payment business of taxes) arising Subsidiary Bank incurred in the ordinary course of Borrower’s business and not in connection with the borrowing of money, and liens securing Permitted Subsidiary Bank Indebtedness in the ordinary course of business;
5.1.2.5. liens on property of Borrower or any Subsidiary created solely for the purpose of securing Indebtedness permitted by Section 5.1.1.4, representing or incurred to finance, refinance or refund the purchase price of property, provided that no such Subsidiary’s business lien shall extend to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk cover other property of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiarySubsidiary other than the respective property so acquired, in each case prior and the principal amount of Indebtedness secured by any such lien shall at no time exceed the original purchase price of such property;
5.1.2.6. liens to the commencement of foreclosure secure public funds or other pledges of funds required by law to secure deposits;
5.1.2.7. repurchase agreements, reverse repurchase agreements and other similar proceedings transactions entered into by Subsidiary Bank in the ordinary course of its banking or trust business; and
5.1.2.8. utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants properties of a similar character and other restrictions affecting the use of real property which do not interfere in any material respect way affect the marketability of the same or interfere with the use of such real property or ordinary conduct of thereof in the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateSubsidiaries.
Appears in 1 contract
Sources: Loan and Subordinated Debenture Purchase Agreement (Centrue Financial Corp)
Encumbrances. Borrower shall not, and Guarantor shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, the Collateral (including the Collateralitems described in sections sections 2.1 and 2.2 whether or not the security interest has attached), except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be Guarantor and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s Guarantor's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryGuarantor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary Guarantor as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) subordinated liens on assets the Collateral in favor of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowvendors, provided, that, provided such liens shall be junior and subordinate are subordinated to the liens of Collateral Agent Lender on terms and conditions and subject to agreements acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingLender; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificate4.4 hereto.
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary other Obligor to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lenders and the security interests and liens of Agent for the benefit of any Affiliate of Agent, any Lender, any Affiliate of any Lender or any other financial institution acceptable to Agent that is party to an Interest Rate Protection Agreement to the extent provided for herein and subject to the terms hereof;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such SubsidiaryGuarantor or other Obligor, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s other Obligor's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured (subject to customary deductibles) and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiaryother Obligor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary other Obligor as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Aircraft or other Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests secure Indebtedness permitted under Sections 9.9(b) and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; 9.9(g) hereof;
(f) liens or rights and security interests in favor of setoffs or credit balances EETC Trustee, for itself and the benefit of Borrower EETC Certificate Holders, to secure the Indebtedness of Atlas Air to EETC Certificate Holders under the EETC Documents as in effect on the date hereof, as permitted under Section 9.9(h) below, which liens and security interests are subject and subordinate to the liens and security interests of Agent, for itself and the benefit of Lenders, pursuant to and in accordance with Credit Card Processors as a result the terms of fees the provisions of the EETC Intercreditor Agreement, the Reorganization Plan, the Confirmation Order and chargebacks; the EETC Documents;
(g) liens and security interests in favor of mortgagees, lessors and sublessors of Aircraft and Engines identified as such on Schedule 9.9 to the Information Certificate or acquired on a purchase money basis in accordance with Section 9.9(b) hereof to Borrowers pursuant to the Existing Aircraft Financings, in each case subject to and in accordance with the terms thereof as in effect on the date hereof, to secure the Indebtedness permitted under Sections 9.9(b) and 9.9(i) hereof;
(h) pledges and deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; date hereof;
(i) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), overflight fees, landing fees statutory obligations and other similar obligations, in each case in the ordinary course of business consistent with the current practices of such Borrower permitted under Section 9.9(g) or Guarantor as of the date hereof; providedPROVIDED, thatTHAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall not have any rights in or to, or other interest in, any of the Collateral other than such cash;
(j) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;
(k) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default; PROVIDED, THAT, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and ;
(j1) the security interests and liens set forth on Schedule 8.4 to secure Refinancing Indebtedness to the Information Certificate.extent permitted under Section 9.9 below;
Appears in 1 contract
Sources: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)
Encumbrances. Borrower and each Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: :
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower Borrower, such Guarantor or such Subsidiary, as the case may be be, and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of the business of Borrower’s , such Guarantor or such Subsidiary’s business , as the case may be, to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower Borrower, such Guarantor or such Subsidiary, as the case may be, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property of Borrower, any Guarantor or Subsidiary which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower Borrower, such Guarantor or such Subsidiary Subsidiary, as the case may be, as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment liens incurred or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated made by Borrower or any Guarantor or Subsidiary in the ordinary course of the business of Borrower or such Guarantor or Subsidiary in connection with worker's compensation, unemployment insurance or other types of social security benefits consistent with the current practices of Borrower or such Guarantor or Subsidiary as of the date hereof;
(f) encumbrances constituting the filing of notice financing statements of a lessor's rights in and to personal property leased to Borrower or any Guarantor or Subsidiary in the ordinary course of the business of Borrower or such Guarantor or Subsidiary;
(g) purchase money liens or security interests upon any specific computer equipment and related software hereafter acquired existing on any such equipment or software at the time of the acquisition thereof by Borrower or such Guarantor or Subsidiary (and including in any event any leases of computer equipment constituting Capitalized Lease Obligations) to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d8.6(e) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, : (i) no such purchase money lien or security interest (or lease with respect to Capitalized Lease Obligations, as the aggregate amount so pledged case may be) covering specific future equipment and related software shall extend to or deposited, together with cover any other property other than the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in specific equipment and related software acquired subject to such lien or security interest (or lease) and the aggregate exceed $2,500,000proceeds thereof, (ii) as of each of such lien or security interest only secures the thirty (30) days immediately preceding obligation to pay the date purchase price of such pledge specific equipment and related software (or deposit and after giving effect theretothe Capitalized Lease Obligations, Excess Availability shall not be less than $4,000,000as the case may be), (iii) such pledge or deposit the principal amount secured thereby shall not exceed one hundred percent (100%) of the cost of the equipment and related software so acquired (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent leased), and (iv) no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing;
(h) purchase money liens or security interests upon any specific fitness equipment hereafter acquired (and including any leases with respect to Capitalized Lease Obligations); provided, that: (i) no such purchase money lien or security interest (or lease with respect to Capitalized Lease Obligations, as the case may be) covering specific future fitness equipment shall extend to or cover any other property other than the specific fitness equipment so acquired, and the proceeds thereof, (ii) such lien or security interest only secures the obligation to pay the purchase price of such specific fitness equipment (or the Capitalized Lease Obligations, as the case may be), (iii) the principal amount secured thereby shall not exceed one hundred (100%) percent of the date cost of such pledge the fitness equipment so acquired (or deposit leased); and after giving effect thereto, (iv) no Default or Event of Default Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing; and and
(ji) the liens and security interests and liens set forth on Schedule 8.4 to the Information Certificate7.7 hereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Health Fitness Physical Therapy Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, hypothec, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; the other Secured Parties;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or obligations under applicable Canadian law which are not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictionsrestrictions (including, without limitation, airport zoning regulations relating to the Real Property of H&H Canada in Rexdale, Ontario), easements (including unregistered easements), licenses, agreements with municipalities, covenants and other restrictions affecting the use of real property Real Property (including, in the case of the Real Property of H&H Canada located in Rexdale, Ontario, (i) any rights of expropriation, access of use, or other rights conferred by any statute of Canada or the Province of Ontario and (ii) the reservations contained in the original grant from Canada) which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property (or, in the case of leasehold interests, the value of such Borrower’s, Guarantor’s or such Subsidiary’s interest in the Real Property) which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding secure Indebtedness permitted under Section 9.9(b) hereof; so long as (i) such interests and mortgages do not apply security interest or mortgage attaches only to any property of Borrower other than the Equipment or real estate so acquiredReal Property purchased or acquired and the proceeds thereof, and (ii) such security interest or mortgage only secures the indebtedness secured thereby does not exceed the cost of Indebtedness that was incurred to acquire the Equipment or real estate so Real Property purchased or acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; ;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any Borrower or Guarantor after the date hereof to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or Guarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC or PPSA, as applicable, financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of its obligations under such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC or PPSA, as applicable, financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) such liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, and (iii) a stay of enforcement of any such liens is in effect;
(j) the security interests in and liens upon the Collateral in favor of First Lien Agent to secure the First Lien Indebtedness (as defined in the We▇▇▇ ▇ntercreditor Agreement);
(k) the security interests in and liens upon the Collateral in favor of the Subordinated Note Trustee to secure the Subordinated Noteholder Indebtedness, provided, that, the security interests in and liens are and shall at all times be subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of the lease for such premises; Subordinated Noteholder Intercreditor Agreement;
(hl) the security interests in and liens on assets upon the Collateral in favor of Borrower WHX to secure indebtedness the Indebtedness of Borrower Borrowers and Guarantors to WHX permitted under Section 9.9(d9.9(k) belowhereof, provided, that, such security interests in and liens are and shall at all times be junior subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of the WHX Intercreditor Agreement;
(m) the security interests in liens upon the Collateral Agent in favor of the holder of any Refinancing Indebtedness (or the agent or trustee on terms and conditions acceptable to Collateral Agent; (ibehalf of the holder or holders of the Refinancing Indebtedness) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness such Refinancing Indebtedness; provided, that, except for Refinancing Indebtedness which refinances, replaces or substitutes for the First Lien Indebtedness (as defined in, and to the extent not prohibited by, the We▇▇▇ ▇ntercreditor Agreement), the security interests and liens upon the Collateral in favor of Borrower such Person are and shall at all times be subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of an intercreditor agreement in form and substance satisfactory to Agent;
(n) the security interests in and liens upon Precious Metals Inventory owned by the Precious Metals Consignor and consigned by the Precious Metals Consignor to Handy, to secure the Indebtedness permitted under Section 9.9(g9.9(j) hereof; provided, that, such security interests and liens are subject to the terms of the Precious Metals Creditor Agreement;
(o) liens of a single commodities intermediary securing Indebtedness of Handy permitted under Section 9.9(l) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with such liens do not at any Hedging Agreements, shall not time encumber any assets other than assets held in the aggregate exceed $2,500,000, commodities account established in accordance with Section 9.9(l) hereof and (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof received, in form and substance reasonably satisfactory to Administrative Agent Agent, an Investment Property Control Agreement with respect to such commodities account, duly authorized, executed and delivered by Handy and such commodities intermediary;
(iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jp) the security interests and liens in favor of OMG Mortgage Lender on the Real Property, fixtures and related assets of OMG located at 95-97 and 15▇ ▇▇▇▇▇▇ ▇▇▇▇, Agawam, Massachusetts securing the Indebtedness permitted under Section 9.9(m) hereof;
(q) the security interests and liens in favor of any lender to any Subsidiary of Parent organized outside of the United States, Canada and Mexico on the assets and properties of such Subsidiary (other than any Capital Stock of a Borrower or Guarantor) securing the Indebtedness permitted under Section 9.9(n) hereof; and
(r) the security interests and liens not otherwise expressly permitted under this Section 9.8 and set forth on Schedule 8.4 to the Information Certificate.;
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, assessments and governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes, assessments and governmental charges or levies) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, rights-of-way, servitudes, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate arising after the date hereof not to exceed $15,000,000 500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) the liens or rights and security interests of setoffs or credit balances Seller to secure the indebtedness of Borrower with Credit Card Processors as a result to Seller permitted under Section 9.9(d), which liens and security interests are, in all respects, subject and subordinate in priority to the liens and security interests of fees Lender pursuant to the intercreditor and chargebackssubordination agreement between Lender and Seller; (g) liens on, or rights of setoff against deposits of cash with the owner or lessor of retail store locations premises leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens incurred (other than on assets Collateral) or deposits made by Borrower in the ordinary course of the business of Borrower in connection with worker's compensation, unemployment insurance or other types of social security benefits consistent with the current practices of Borrower as of the date hereof, or to secure indebtedness the performance of bids, tenders, sales, contracts (other than for the repayment of indebtedness), surety, appeal, customs and performance bonds consistent with the current practices of Borrower permitted under Section 9.9(d) below, as of the date hereof; provided, that, such liens or deposits shall be junior not interfere in any material respect with the use of any property or the ordinary conduct of the business of Borrower or impair the value of the assets and subordinate to the liens properties of Collateral Agent on terms and conditions acceptable to Collateral AgentBorrower in any material respect; (i) pledges encumbrances constituting the filing of notice financing statements of a lessor's rights in and deposits to personal property leased to Borrower in the ordinary course of cashthe business of Borrower; (j) non-consensual statutory or common law liens on, Cash Equivalents or investment securities by Borrower to secure indebtedness rights of setoff against, cash of Borrower on deposit with any depositary bank listed on Schedule 6.3 hereto, or any other banks with whom Borrower maintains deposit accounts to the extent permitted under Section 9.9(g) 6.3 hereof, in favor of the banks in possession of such cash (other than the banks at which the Blocked Accounts are maintained as to cash in the Blocked Accounts); provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, such liens shall not in the aggregate exceed $2,500,000, secure any indebtedness and (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability there shall not be less than $4,000,000, (iii) any restrictions on the ability or right of Borrower to withdraw or use any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingcash; and (jk) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Poindexter J B & Co Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, taxes or amounts due to public utilities either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed the Canadian Dollar Amount of $15,000,000 35,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto (except to the Information Certificateextent that Lender requires the discharge thereof prior to the advance of the initial Loans hereunder).
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except the following (collectively, “Permitted Liens”):
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding secure Indebtedness permitted under Section 10.3(b) hereof (so long as at the option of Agent if any Collateral is located on the premises of such interests and mortgages do not apply Real Property, Agent shall have received a Collateral Access Agreement from the mortgagee with respect to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; such Real Property);
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower permitted under Section 9.9(gor Guarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance reasonably satisfactory to Agent;
(h) hereofliens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as Agent may establish a Reserve with respect thereto;
(j) security interests and other liens in property or assets of a Person existing at the time such Person is acquired pursuant to a Permitted Acquisition after the date hereof in respect of Indebtedness permitted under Section 10.3(l) hereof (and Liens in respect of Refinancing Indebtedness with respect thereto permitted under Section 10.3(i) hereof); provided, that, each of the date following conditions is satisfied: (i) such Person is not upon or anytime after such Permitted Acquisition, a Borrower or Guarantor, (ii) such security interests and other liens were not granted and did not arise in connection with, or in anticipation or contemplation of, such Permitted Acquisition, and are otherwise permitted hereunder, (iii) the property or assets subject to such security interests and other Liens do not include any assets or properties of any Person other than assets or properties of the Person so acquired, and (iv) such Person maintains separate deposit accounts, and no proceeds of Accounts and Inventory of such pledge Person are deposited into the deposit accounts of any Borrower or deposit Guarantor;
(k) subject to Borrowers’ and after giving effect theretoGuarantors’ compliance with the minimum liquidity covenant set forth in Section 11.2, no Default (i) cash collateral pledged to Wachovia or Event its Affiliates to secure letters of Default shall exist or have occurred credit and be continuing; Hedge Agreements and (jii) cash collateral posted in an aggregate amount not to exceed $35,000,000 to secure such Borrower’s, Guarantor’s or Subsidiary’s obligations with respect to other letters of credit and Hedge Agreements permitted under Section 10.3(e) and (k) hereof;
(l) bankers’ Liens, rights of setoff and other similar liens existing solely with respect to cash, Cash Equivalents, financial assets or investment property on deposit in one or more accounts maintained by any Borrower or Guarantor, in each case, granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank or banks with respect to cash management, operating account and Investment Account arrangements, provided, that, Deposit Account Control Agreements are obtained if required in accordance with the terms of this Agreement;
(m) liens on assets of Foreign Subsidiaries to secure Indebtedness permitted under Section 10.3(k); and
(n) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Adc Telecommunications Inc)
Encumbrances. Borrower Neither of Borrowers shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are either (A) fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or (B) being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case under this clause (ii) prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its booksbooks in accordance with GAAP; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) of Borrowers and purchase money mortgages on real estate Real Property of Borrowers securing indebtedness in a principal amount not to exceed $15,000,000 10,000,000 in the aggregate at any time outstanding so long as for all such purchase money security interests in Equipment (including capital leases) and purchase money mortgages on Real Property, and, in any case, provided that (i) such security interests in Equipment (including capital leases) and mortgages do not apply to (A) any property of Borrower Borrowers other than the Equipment or real estate Real Property so acquired or (B) any fixtures, attachments, accessions or additions to any of the Real Property or Equipment of Borrowers owned or leased by Borrowers on the date hereof or hereafter acquired, other than any such after acquired Equipment secured by a purchase money security interest (including capital leases) or purchase money mortgage permitted hereunder, and (ii) the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate Real Property so acquired, as the case may be; (f) liens incurred upon any property of Borrowers other than Collateral or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of in cash with the owner or lessor of retail store locations leased and operated by Borrower made in the ordinary course of business that are required or imposed by Federal or State law in connection with workers' compensation, unemployment insurance and other types of social security; (g) liens incurred upon any property of Borrowers other than Collateral or deposits in cash made in the ordinary course of business of Borrower to secure the performance by Borrower of its obligations tenders, statutory obligations, surety and appeal bonds, bids, leases (permitted under the terms and conditions of this Agreement), government contracts, and performance and return-of-money bonds so long as the lease for obligations secured thereby are not past due or otherwise in default at any time such premisesliens are incurred; (h) judgment and attachment liens on assets that have not given rise and do not thereafter give rise to an Event of Borrower Default and, in any case, provided that (x) the execution or other enforcement of such judgment and attachment liens is effectively stayed, (y) the claims secured thereby are being actively contested in good faith and by appropriate proceedings and Availability Reserves sufficient to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior cover the amount thereof plus interest and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities costs thereon have been established by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereofLender if so required by Lender; provided, that, nothing contained in this clause (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposith) shall be required by the other party permit either Borrower to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge incur any lien arising under ERISA or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingany Environmental Law; and (ji) the security interests and liens set forth on Schedule 8.4 to the Information Certificate9.4 hereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Reunion Industries Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) the liens or rights security interests in favor of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with License Creditor to secure the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business Indebtedness of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower License Creditor permitted under Section 9.9(d9.9(g) belowof this Agreement, provided, that, such security interests and liens are and shall be junior and subordinate to the security interests and liens of Collateral Agent Lender on terms and conditions acceptable to Collateral AgentLender; and
(i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jg) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue more than 60 days or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not more than 60 days overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 1,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights defects, irregularities and deficiencies in title of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacksreal property; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto, (h) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations; (i) deposits and escrows to secure the performance of purchase and sale agreements and other obligations of a like nature, in each case in the ordinary course of business; (j) reserves pledged to secure credit card charge-backs, established in the ordinary course of business; (k) any interest or title of a lessor under a lease entered into by Borrower or a subsidiary thereof in the ordinary course of business and covering only the assets so leased; (l) liens and security interests on goods held on consignment and the proceeds thereof, in favor of the respective consignors; (m) any lien existing on any property or asset prior to the Information Certificateacquisition thereof by Borrower or existing on any property or asset of any Person that becomes a subsidiary of Borrower pursuant to Section 9.10 prior to the time such Person becomes a subsidiary; PROVIDED that (i) such lien is not created in contemplation of or in connection with such acquisition or such Person becoming a subsidiary, as the case may be, (ii) such lien shall not apply to any other property or assets of Borrower, any Obligor or any subsidiary thereof and (iii) such lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a subsidiary, as the case may be and (n) cash collateralization of letters of credit permitted by clause (d) of Section 9.9.
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictionsrestrictions (including, without limitation, airport zoning regulations relating to the Real Property of H&H Canada in Rexdale, Ontario), easements (including unregistered easements), licenses, agreements with municipalities, covenants and other restrictions affecting the use of real property Real Property (including, in the case of the Real Property of H&H Canada located in Rexdale, Ontario, (i) any rights of expropriation, access of use, or other rights conferred by any statute of Canada or the Province of Ontario and (ii) the reservations contained in the original grant from Canada) which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property (or, in the case of leasehold interests, the value of such Borrower's, Guarantor's or such Subsidiary's interest in the Real Property) which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or Guarantor as of the date hereof; PROVIDED, THAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC or PPSA, as applicable, financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC, or PPSA, as applicable, financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, PROVIDED, THAT, (i) such liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of enforcement of any such liens is in effect and (iv) Agent may establish a Reserve with respect thereto;
(j) the security interests in and liens upon the Collateral in favor of the Working Capital Agent to secure the Working Capital Debt, PROVIDED, THAT, such security interests and liens in favor of the Working Capital Agent are and shall at all times be subject to the terms of the Intercreditor Agreement;
(k) the security interests in liens upon the Collateral in favor of the holder of the Refinancing Indebtedness (or the agent or trustee on behalf of the holder or holders of the Refinancing Indebtedness) to secure the Refinancing Indebtedness; PROVIDED, THAT, the security interests and liens upon the Collateral in favor of such Person are and shall at all times be subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of an intercreditor agreement in form and substance satisfactory to Agent;
(l) the security interests in and liens upon Precious Metals Inventory owned by the Precious Metals Consignor and consigned by the Precious Metals Consignor to Parent, to secure the Indebtedness permitted under Section 9.9(g9.9(i) hereof; provided, that, (i) such security interests and liens are subject to the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each terms of the thirty Precious Metals Creditor Agreement; and
(30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jm) the security interests and liens not otherwise expressly permitted under this Section 9.8 and set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Encumbrances. Borrower No Loan Party shall, or shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral and Foreign Collateral, except: :
(a) the security interests and liens of any Collateral Agent Agents for itself and the benefit of Lenders and/or Foreign Lenders; , as the case may be;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be Person and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s Person's business to the extent: (i) such liens secure Indebtedness which is not overdue for a period of more than sixty (60) days or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryPerson, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary Person as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any such Person after the owner or lessor of retail store locations leased and operated by Borrower Original Closing Date in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of Borrower to secure the performance by Borrower of its obligations under the terms such Person as of the lease for such premises; Original Closing Date;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents or investment securities cash by Borrower any such Person after the Original Closing Date to secure indebtedness the performance of Borrower permitted under Section 9.9(gtenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Person as of the Original Closing Date provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent in its good faith determination;
(h) hereof; liens arising from (i) operating leases and the precautionary UCC financing statement filings or their foreign equivalents in respect thereof, (ii) equipment or other materials which are not owned by any such Person located on the premises of such Person (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Person and the precautionary UCC financing statement filings or their foreign equivalents in respect thereof and (iii) subleases or license agreements;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) Agent (or the applicable Foreign Lender, as of applicable) may establish a Reserve (or its equivalent under the date of such pledge or deposit and after giving effect Foreign Financing Agreements, as applicable) with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and ;
(j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateCertificate as well as any exception to title to the Real Properties appearing on Agent's policies of title insurance;
(k) pledges of cash or marketable securities of any such Person to secure hedging obligations of such Person made in the ordinary course of business of such Person and to the extent such obligations are permitted under Section 9.9 hereof;
(l) liens on the assets of a Foreign Subsidiary securing Indebtedness of such Foreign Subsidiary to the extent such Indebtedness is permitted under Section 9.9 hereof;
(m) liens on the assets acquired pursuant to a Permitted Acquisition to secure Indebtedness assumed in connection with such Permitted Acquisitions to the extent such Indebtedness is permitted under Section 9.9 hereof; provided, that, (i) such liens were existing prior to the consummation of the Permitted Acquisition, (ii) such liens were not created in contemplation of or in connection with such Permitted Acquisition and (iii) such liens are not on Receivables or Inventory of any Person; and
(n) liens securing Refinancing Indebtedness permitted (and defined) under Section 9.9 hereof, but only covering assets which secured the Indebtedness being refinanced.
Appears in 1 contract
Sources: Loan and Security Agreement (Delco Remy International Inc)
Encumbrances. The Borrower shall not, and shall not permit any Subsidiary towithout the prior written consent of the Lender, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, liensecurity interest, lien or other charge or other encumbrance of any nature whatsoever on any of its assets the Borrower’s property other than Permitted Encumbrances, which consent will not be unreasonably withheld or propertiesdelayed. For purposes hereof, including the Collateral, except“Permitted Encumbrances” shall mean: (a) liens in favor of the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing for taxes, assessments or other governmental charges not delinquent or being contested in good faith and by appropriate proceedings and with respect to which proper reserves have been taken by Borrower; provided, that, the lien shall have no effect on the priority of the liens in favor of the Lender or the value of the assets in which the Lender has such a lien and a stay of enforcement of any such lien shall be in effect; (c) liens disclosed in the financial statements, if any, delivered to the Lender on or before the closing date; (d) deposits or pledges to secure obligations under worker’s compensation, social security or similar laws, or under unemployment insurance; (e) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of taxesmoney), either leases, subleases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of Borrower’s business; (f) judgment liens that have been stayed or bonded and are being contested in good faith by Borrower and mechanics’, workers’, materialmen’s, carriers’, warehousemen’s or other like liens arising in the ordinary course of Borrower’s business with respect to obligations which are not yet overdue due or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its booksBorrower; (cg) non-consensual statutory liens placed upon fixed assets hereafter acquired to secure a portion of the purchase price thereof, provided that any such lien shall not encumber any other property of Borrower; (h) other than liens securing incidental to the payment conduct of taxesBorrower’s business or the ownership of its property and assets which were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and which do not in the aggregate materially detract from the Lender’s rights in and to the collateral or the value of Borrower’s property or assets or which do not materially impair the use thereof in the operation of Borrower’s business; (i) arising any interest or title of a lessor or sublessor under any lease or sublease permitted by this Agreement; (j) liens disclosed on Schedule 3.2 hereto; (k) leases, subleases, licenses or sublicenses granted to others in the ordinary course of the Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is and not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere interfering in any material respect with the use of such real property or ordinary conduct business of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject theretoBorrower; (el) liens that are contractual rights of set-off relating to (i) depository relations with banks not given in connection with the issuance of debt for borrowed money, (ii) pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations or (iii) purchase money security interests in Equipment (including Capital Leases) orders and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower agreements with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower customers in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premisesBorrower’s business; (hm) liens on assets arising by virtue of Borrower any statutory or common law provision related to secure indebtedness bankers’ liens, rights of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents set-off or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingsimilar rights; and (jn) the security interests liens in favor of customs and liens set forth on Schedule 8.4 to the Information Certificaterevenue authorities arising as a matter of law.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, exceptEXCEPT: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 250,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. The Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance Lien of any nature whatsoever on any of its assets or propertiesproperty, including including, without limitation, the Collateral, except: other than the following (a“Permitted Liens”): (i) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens Liens securing the payment of taxes, either not yet overdue due or the validity of which are is being contested in good faith by appropriate proceedings diligently pursued proceedings, and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves the Borrower shall, if appropriate under GAAP, have been set aside on its booksbooks and records adequate reserves, provided, that such contest does not have a material adverse effect on the ability of the Borrower to pay any of the Liabilities, or the priority or value of the Administrative Agent’s Lien in the Collateral; (ii) deposits under workmen’s compensation, unemployment insurance, social security and other similar laws made in the ordinary course of business; (iii) Liens in favor of the Administrative Agent (for the ratable benefit of Lenders and Administrative Agent); (iv) liens imposed by law, such as mechanics’, materialmen’s, landlord’s, warehousemen’s, carriers’ and other similar liens, securing obligations incurred in the ordinary course of business that are not past due for more than thirty (30) calendar days, or that are being diligently contested in good faith by appropriate proceedings and for which appropriate reserves have been established, or that are not yet due and payable; (v) purchase money security interests upon or in any property acquired or held by the Borrower in the ordinary course of business to secure the purchase price of such property so long as: (a) the aggregate indebtedness relating to such purchase money security interests and Capitalized Lease Obligations does not at any time exceed Five Hundred Thousand and No/100 Dollars ($500,000.00) in the aggregate at any time, (b) each such lien shall only attach to the property to be acquired; and (c) non-consensual the indebtedness incurred shall not exceed one hundred percent (100%) of the purchase price of the item or items purchased; (vi) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation laws, unemployment insurance and other social security laws or regulations, or deposits to secure performance of tenders, statutory liens obligations, trade contracts (other than liens securing the payment for Indebtedness), leases (other than Capital Lease Obligations), surety and appeal bonds, performance bonds and other obligations of taxes) arising a like nature incurred in the ordinary course of Borrower’s business as presently conducted; (vii) any Lien securing a judgment; provided, that any Lien securing a judgment in excess of Five Hundred Thousand Dollars ($500,000.00) that remains unsatisfied or undischarged for more than thirty (30) days shall not be a Permitted Lien, unless such Subsidiary’s business to the extent: judgment is either (ix) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the such insurer has admitted liability or (y) is being contested in good faith or appealed by appropriate proceedings diligently pursued and available to the enforcement of such judgment is stayed during the course of such contest or appeal, provided that Borrower has established reserves adequate for payment of such judgment and in the event such contest or appeal is ultimately unsuccessful pays such Subsidiaryjudgment within ten (10) days of the final, non-appealable ruling rendered in each case prior to the commencement of foreclosure such contest or other similar proceedings and appeal; (viii) financing statements with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants a lessor’s rights in and other restrictions affecting the use of real to personal property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not leased to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less other than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as through a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingCapitalized Lease Obligations; and (jix) Liens in favor of Omega and the security interests and liens set forth on Schedule 8.4 Omega Senior Lessor, subject in all cases to the Information Certificateprovisions of the Omega Intercreditor Agreement.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Encumbrances. No Borrower shall notshall, and shall not nor permit any Subsidiary of its Subsidiaries to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the CollateralCollateral or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 9.9(b) hereof; (f) subordinate security interests and liens in or rights against the assets of setoffs Borrowers or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacksthe Domestic Subsidiaries to secure the Hilco Note; (g) deposits of cash with security interests and liens in or against the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course assets of the business of Borrower Direct Foreign Subsidiaries or MB Quart GmbH, a German GmbH to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(f) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jh) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, createCreate, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on Encumbrance upon any of its properties or assets or properties(including without limitation, including the Collateral), except: whether now owned or hereafter acquired, except (a) Encumbrances in favor of the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of Encumbrances for taxes, either assessments or other governmental charges which are not yet overdue past due or the validity of which are being contested by Borrower in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been the Borrower has set aside on its booksbooks adequate reserves therefor and for which the Borrower has made arrangements acceptable to Lender to secure payment thereof, as determined in Lender’s sole and absolute discretion; (c) non-consensual statutory liens Encumbrances disclosed in Schedule 7.2 attached hereto and incorporated herein by reference; (other than liens securing the payment of taxesd) arising deposits or pledges required in the ordinary course of Borrower’s or such Subsidiary’s business to secure obligations under worker’s compensation or social security laws, or with respect to unemployment insurance; (e) mechanic’s, workers’ or materialmen’s Encumbrances arising in the extent: (i) such liens secure Indebtedness which is Borrower’s ordinary course of business with respect to obligations that are not overdue more than thirty (30) days from their respective due dates or (ii) such liens secure Indebtedness relating to claims or liabilities which that are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to for which Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been has set aside on its booksbooks adequate reserves therefor and for which the Borrower has made arrangements acceptable to Lender to secure payment thereof, as determined in Lender’s sole and absolute discretion; and (df) zoning restrictions, easements, licenses, covenants and other restrictions affecting Encumbrances placed upon fixed assets hereafter acquired to secure a portion of the use of real property which do not interfere in any material respect with the use purchase price thereof; provided that (1) Borrower’s purchase of such real property fixed assets shall be in Borrower’s ordinary course of business, (2) such Encumbrances shall not extend to or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to encumber any property of the Borrower other than the Equipment or real estate property being so acquired, purchased and (3) the indebtedness secured thereby does not exceed the cost aggregate amount of the Equipment or real estate so acquired, and the indebtedness Debt secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors by such Encumbrances incurred as a result of fees and chargebacks; (gsuch purchases shall not at any time exceed the amount provided for in Section 7.1(c) deposits of cash with this Agreement. Notwithstanding anything in this Section 7.2 to the owner or lessor contrary, the total amount of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted Encumbrances under Section 9.9(d7.2(c) below, provided, that, such liens shall be junior and subordinate to plus the liens total amount of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted Encumbrances under Section 9.9(g) hereof; provided, that, 7.2 (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or depositf) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower not, at any time, exceed Seven Hundred Fifty Thousand and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and 00/100 Dollars (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate$750,000.00).
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, hypothec, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; the other Secured Parties;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or obligations under applicable Canadian law which are not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictionsrestrictions (including, without limitation, airport zoning regulations relating to the Real Property of H&H Canada in Rexdale, Ontario), easements (including unregistered easements), licenses, agreements with municipalities, covenants and other restrictions affecting the use of real property Real Property (including, in the case of the Real Property of H&H Canada located in Rexdale, Ontario, (i) any rights of expropriation, access of use, or other rights conferred by any statute of Canada or the Province of Ontario and (ii) the reservations contained in the original grant from Canada) which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property (or, in the case of leasehold interests, the value of such Borrower’s, Guarantor’s or such Subsidiary’s interest in the Real Property) which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding secure Indebtedness permitted under Section 9.9(b) hereof; so long as (i) such interests and mortgages do not apply security interest or mortgage attaches only to any property of Borrower other than the Equipment or real estate so acquiredReal Property purchased or acquired and the proceeds thereof, and (ii) such security interest or mortgage only secures the indebtedness secured thereby does not exceed the cost of Indebtedness that was incurred to acquire the Equipment or real estate so Real Property purchased or acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; ;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any Borrower or Guarantor after the date hereof to secure the performance by of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower of its obligations under the terms or Guarantor as of the lease for date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such premises; bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC or PPSA, as applicable, financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on assets the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC or PPSA, as applicable, financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) such liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of enforcement of any such liens is in effect and (iv) Agent may establish a Reserve with respect thereto;
(j) the security interests in and liens upon the Collateral in favor of Term B Loan Agent to secure indebtedness of Borrower permitted under Section 9.9(d) belowthe Term B Loan Debt, provided, that, such security interests in and liens are and shall at all times be junior subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of the Term B Loan Intercreditor Agreement;
(k) the security interests in and liens upon the Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits in favor of cash, Cash Equivalents or investment securities by Borrower Subordinated Note Trustee to secure indebtedness the Subordinated Noteholder Indebtedness, provided, that, such security interests in and liens are and shall at all times be subject and subordinate to the security interests and liens therein of Borrower Agent pursuant to the terms of the Subordinated Noteholder Intercreditor Agreement;
(l) the security interests in and liens upon the Collateral in favor of WHX to secure the Indebtedness of Borrowers and Guarantors to WHX permitted under Section 9.9(g9.9(k) hereof, provided, that, such security interests in and liens are and shall at all times be subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of the WHX Intercreditor Agreement;
(m) the security interests in liens upon the Collateral in favor of the holder of any Refinancing Indebtedness (or the agent or trustee on behalf of the holder or holders of the Refinancing Indebtedness) to secure such Refinancing Indebtedness; provided, that, the security interests and liens upon the Collateral in favor of such Person are and shall at all times be subject and subordinate to the security interests and liens therein of Agent pursuant to the terms of an intercreditor agreement in form and substance satisfactory to Agent;
(n) the security interests in and liens upon Precious Metals Inventory owned by the Precious Metals Consignor and consigned by the Precious Metals Consignor to Handy, to secure the Indebtedness permitted under Section 9.9(j) hereof; provided, that, such security interests and liens are subject to the terms of the Precious Metals Creditor Agreement;
(o) liens of a single commodities intermediary securing Indebtedness of Handy permitted under Section 9.9(l) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with such liens do not at any Hedging Agreements, shall not time encumber any assets other than assets held in the aggregate exceed $2,500,000, commodities account established in accordance with Section 9.9(l) hereof and (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof received, in form and substance reasonably satisfactory to Administrative Agent Agent, an Investment Property Control Agreement with respect to such commodities account, duly authorized, executed and delivered by Handy and such commodities intermediary;
(iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jp) the security interests and liens in favor of OMG Mortgage Lender on the Real Property, fixtures and related assets of OMG located at 95-97 and 1▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Agawam, Massachusetts securing the Indebtedness permitted under Section 9.9(m) hereof;
(q) the security interests and liens in favor of any lender to any Subsidiary of Parent organized outside of the United States, Canada and Mexico on the assets and properties of such Subsidiary (other than any Capital Stock of a Borrower or Guarantor) securing the Indebtedness permitted under Section 9.9(n) hereof; and
(r) the security interests and liens not otherwise expressly permitted under this Section 9.8 and set forth on Schedule 8.4 to the Information Certificate.;
Appears in 1 contract
Encumbrances. Borrower shall not, and Each Loan Party shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever (each, a “Lien”) on any of its assets or properties, including without limitation any of the Collateral, except: :
(a) the security interests and liens Liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties;
(b) liens Liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryLoan Party, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens Liens (other than liens Liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such SubsidiaryLoan Party’s business to the extent: (i) such liens Liens secure Indebtedness obligations which is are not overdue or (ii) such liens Liens secure Indebtedness obligations relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryLoan Party, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real Real Property which do not interfere in any material respect with the ordinary conduct of the business of Loan Parties as presently conducted thereon;
(e) purchase money Liens or the interests of lessors under Capital Leases, in each case, in Equipment and Real Property (and the proceeds, products and accessions thereof and thereto) to secure the Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and deposits of cash or Cash Equivalents by any Loan Party in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits;
(g) pledges and deposits of cash or Cash Equivalents by any Loan Party to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), trade lines with vendors, statutory obligations and other similar obligations, in each case in the ordinary course of business and not in connection with the borrowing of money;
(h) Liens arising from (i) any Lease Agreement (or sublease with respect thereto) or any true operating lease entered into in the ordinary course of business and the precautionary UCC financing statement filings in respect thereof, and (ii) equipment or other materials which are not owned by any Loan Party located on the premises of such Loan Party (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Loan Party and the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar Liens arising as a result of the existence of judgments, orders or awards that do not constitute an Event of Default, provided, that, (i) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (ii) such judgment or Lien shall be effectively stayed or bonded within thirty (30) days after the date such judgment or Lien first arose and (iii) Agent may establish a Reserve with respect thereto;
(j) Liens or rights of setoff against credit balances of Loan Parties with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Loan Parties in the ordinary course of business, but not Liens on or rights of setoff against any other property which or assets of Loan Parties, pursuant to the Credit Card Agreements to secure the obligations of Loan Parties to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks;
(k) any Lien existing on any assets or properties other than Accounts or Inventory (and the proceeds thereof) of a Person existing at the time such Person becomes a Subsidiary of a Loan Party after the date hereof (and the replacement, extension or renewal of such Lien on the same assets); provided, that (i) such Lien is not created in contemplation of or in connection with a Permitted Acquisition or such Person becoming a Subsidiary, as the case may be, and (ii) such Lien shall secure only the Indebtedness permitted under Section 9.9(n) hereof,
(l) Liens on Equipment and Real Property of Loan Parties or the Capital Stock of any Propco to secure Indebtedness permitted under Section 9.9(h) hereof;
(m) leases or subleases of Real Property granted by any Loan Party in the ordinary course of business and consistent with past practice (i) to its franchisees and (ii) to any Person so long as any such leases or subleases pursuant to this clause (ii) do not interfere in any material respect with the use of such real property Real Property or the ordinary conduct of the business of Borrower or such Subsidiary Loan Party as presently conducted thereon or materially impair the value of the real property which may be subject thereto; such Real Property;
(en) purchase money security interests any interest or title of a lessor, sublessor, licensee, licensor or sublicensor in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply or to any property of Borrower asset (other than the Equipment Accounts or real estate so acquiredInventory) under any lease, and the indebtedness secured thereby does not exceed the cost of the Equipment sublease or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated license entered into by Borrower any Loan Party in the ordinary course of business and covering only the assets so leased, subleased or licensed, in each case that do not interfere in any material respect with the business of Borrower any Loan Party;
(o) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other depository institutions, solely to secure the performance by Borrower extent incurred in connection with the maintenance of its obligations under such deposit accounts in the terms ordinary course of business;
(p) Liens granted in the lease for such premises; (h) liens ordinary course of business on assets the unearned portion of Borrower to secure indebtedness of Borrower insurance premiums securing the Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(j) hereof;
(q) Liens on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made in connection with a letter of intent or purchase agreement with respect to a Permitted Acquisition;
(r) other Liens on assets or properties (other than Accounts and Inventory); provided, that, that (i) the aggregate amount so pledged fair market value of such assets or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall properties subject to such Liens does not in the aggregate exceed $2,500,0002,500,000 at the time of attachment of any such Lien, and (ii) as such Liens secure liabilities at any time outstanding not in excess of each of $2,500,000 in the thirty aggregate; and
(30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (js) the security interests and liens Liens set forth on Schedule 8.4 to the Information Certificate9.8 hereto which are not otherwise permitted under this Section 9.8 above.
Appears in 1 contract
Sources: Loan and Security Agreement (Travelcenters of America LLC)
Encumbrances. No Borrower shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to the applicable Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of the applicable Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue overdue, (ii) such liens consist of inchoate liens in favor of a landlord with respect to rent not yet due and payable by a Borrower in connection with a real estate lease or (iiiii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to the applicable Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of the applicable Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower Real Property to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d9.9(b) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent hereof and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 9.9(b) hereof; -77-
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower permitted under Section 9.9(g) or Guarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and and
(j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit ------------ to exist any security interest, mortgage, pledge, lienLien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: Properties and Principal Agreements, except the following permitted encumbrances (a) the "Permitted ------ Encumbrances"):
2.32.1 Liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens Secured Party;
2.32.2 Liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) ;
2.32.3 non-consensual statutory liens Liens (other than liens Liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) extent such liens Liens secure Indebtedness indebtedness which is not overdue or (ii) such liens Liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) ;
2.32.4 zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) ;
2.32.5 purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed Ten Thousand Dollars ($15,000,000 10,000) in the aggregate in any year and in no event in excess of a maximum of Twenty Five Thousand Dollars ($25,000) in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens ;
2.32.6 Liens or rights of setoffs setoff or credit balances of Borrower with Credit Card Processors Issuers, but not Liens on or rights of setoff against any other property or assets of Borrower pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of Borrower to the Credit Card Issuers as a result of fees and chargebacks; (g) ;
2.32.7 deposits of cash with the owner or lessor of retail store locations premises leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets ;
2.32.8 Liens in favor of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and lessors that are expressly subordinate to the liens security interest of Collateral Agent on terms and conditions acceptable to Collateral AgentSecured Party; (i) pledges and deposits and
2.32.9 Liens representing the interest of cashany Ground Lessor under any Ground Lease, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not as defined in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificateapplicable Mortgage.
Appears in 1 contract
Sources: Loan and Security Agreement (Discovery Investments Inc)
Encumbrances. Each Borrower shall not, and shall not permit any Guarantor or Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: :
(a) the Liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens Liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower any Borrower, Guarantor or such Subsidiary, as the case may be be, and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of the business of any Borrower’s , Guarantor or such Subsidiary’s business , as the case may be, to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, as the case may be, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) Liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) Equipment or other materials which are not owned by a Borrower located on the premises of such Borrower (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of Borrowers and the precautionary UCC financing statement filings in respect thereof;
(e) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of any real property owned by any Borrower, Guarantor or Subsidiary which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower any Borrower, Guarantor or such Subsidiary Subsidiary, as the case may be, as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(ef) purchase money security interests in any Equipment (including Capital LeasesCapitalized Lease Obligations) owned by any Borrower and purchase money mortgages on real estate not property owned by any Borrower arising after the date hereof to exceed $15,000,000 in the aggregate at secure Indebtedness of any time outstanding Borrower permitted under Section 7.03 hereof so long as such security interests and mortgages do not apply to any property of such Borrower other than the Equipment or real estate property so acquired, and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate property so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; ;
(g) deposits of cash with the owner or lessor of retail store locations premises leased and operated by any Borrower in the ordinary course of the business of such Borrower to secure the performance by such Borrower of its obligations under the terms of the lease for such premises; ;
(h) liens Liens and security interests of Congress for itself and the benefit of the Congress Facility Lenders on assets of Borrower the Collateral to secure indebtedness the Indebtedness of Borrower Borrowers to the Congress Facility Lenders permitted under Section 9.9(d) below7.03 hereof, providedwhich liens and security interests are, thatin all respects, such liens shall be junior subject and subordinate in priority to the liens and security interests of Agent in the Collateral Agent on terms and conditions acceptable (other than the Congress Facility Priority Collateral) pursuant to Collateral Agent; the Intercreditor Agreement;
(i) pledges Liens and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower security interests in the Lease Debt Priority Collateral securing the Lease Debt permitted under Section 9.9(g7.03(c) hereof;
(j) Liens and mortgages of Bank of America on the real property and fixtures related thereto of WIS located at ▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to secure the Indebtedness of WIS permitted under Section 7.03(d) hereof;
(k) Liens and security interests in the Collateral securing the Pool Indebtedness permitted under Section 7.03(c) hereof; provided, that, and
(il) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit Liens and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate5.4 hereto.
Appears in 1 contract
Sources: Credit Agreement (Huffy Corp)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) not to exceed $3,000,000 in the aggregate at any one time outstanding, and purchase money mortgages on real estate owned in fee simple not to exceed $15,000,000 500,000 in the aggregate at any time outstanding outstanding, so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or such real estate so acquired, as the case may be; (f) mortgage liens (including capital leases) with respect to the Real Property of Borrower located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Bronx, New York and/or any improvements thereto, to the extent owned or leased by Borrower under a capital lease, that secure Indebtedness permitted under Sections 9.9(d) or (e) hereof; (g) liens or rights of setoffs setoff or credit balances of Borrower with Credit Card Processors Issuers, but not liens on or rights of setoff against any other property or assets of Borrower pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of Borrower to the Credit Card Issuers as a result of fees and chargebacks; (gh) deposits of cash with the owner or lessor of retail store locations premises leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (hi) liens on assets or security, interests in cash securing the performance of Borrower bids, tenders, contracts (other than for borrowed money), surety and appeal bonds incurred as an incident to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as ordinary course of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingBorrower's business; and (j) the liens and security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the Liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Agent;
(b) liens Liens securing the payment of taxes, taxes which are either (i) not yet overdue due and payable or (ii) the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to any Borrower or such Subsidiary, as the case may be Obligor and with respect to which adequate reserves have been set aside on its books; , provided, that, in the event that a tax Lien is filed of record and has priority over the Liens of Agent as to the property or assets that are the subject of the applicable tax Lien, Agent shall establish a Reserve equal to the amount secured by such Lien unless, the Required Lenders and Required Term Loan Lenders determine otherwise;
(c) Intentionally deleted;
(d) non-consensual statutory liens Liens (other than liens Liens securing the payment of taxes) arising in the ordinary course of any Borrower’s 's or such Subsidiary’s Obligor's business to the extent: (i) such liens Liens secure Indebtedness which is not overdue or overdue, (ii) ii such liens Liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or and are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryObligor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books, (ii) non-payment thereof would not result in a Material Adverse Effect;
(e) purchase money security interests in Equipment (including Capital Leases), granted after the date hereof, not to exceed $40,000,000 in the aggregate at any time outstanding so long as such security interests do not apply to any property of any Borrower or Obligor other than the Equipment so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment so acquired;
(f) purchase money mortgages, granted after the date hereof, on real estate not to exceed $5,000,000 in the aggregate at any time outstanding (exclusive of the Refinancing Mortgages referred to in Section 9.8(l) below) so long as such mortgages do not apply to any property of any Borrower or Obligor other than the real estate so acquired, and the Indebtedness secured thereby does not exceed the cost of the real estate so acquired;
(g) deposits of cash to secure the performance of bids, trade contracts (other than for borrowed money), freight and customs duties, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business consistent with the current practices of Borrowers and Obligors as of the date hereof; provided, that, such deposit of cash is the only security for Borrowers -------- ---- and Obligors' performance thereunder;
(dh) Liens to secure Refinancing Indebtedness to the extent permitted in Section 9.9 hereof;
(i) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower any Borrower, or such Subsidiary Obligor as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(ej) purchase money pledges and deposits of cash by any Borrower or Obligor after the date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security interests in Equipment benefits consistent with the current practices of Borrowers as of the date hereof;
(including Capital Leasesk) and purchase money rights of setoff of any Credit Card Issuer or Credit Card Processor against amounts owing to any Borrower or Obligor or credit balances of Borrowers with Credit Card Issuers or Credit Card Processors;
(l) (i) mortgages on real estate not to exceed $15,000,000 the Indiana Real Property and/or the Pennsylvania Real Property granted by the owner of such property in favor of a third party other than an Affiliate of Borrowers, and a security interest in the aggregate at any time outstanding Indiana Personal Property (each a "Refinancing Mortgage") so long as each of the following conditions is satisfied in the determination of Agent:
(A) such interests Refinancing Mortgage is created and mortgages do the Indebtedness secured thereby is incurred no later than one hundred twenty (120) days after the Closing Date, (B) Agent shall have received not less than twenty (20) days prior written notice of the intention of the owner of such property to grant such Lien and incur such Indebtedness, (C) the Indebtedness secured by such property, arises from loans in cash or other immediately available funds provided to the owners of the property, the proceeds of which are used, to repay the outstanding principal amount of Revolving Loans, which amounts may be reborrowed, (D) such Refinancing Mortgage does not apply to any property of Borrower Borrowers or Obligors other than the Equipment or real estate so acquiredIndiana Real Property, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquiredIndiana Personal Property and/or Pennsylvania Real Property, as the case may be; , (fE) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens Refinancing Mortgage shall be junior in form and subordinate substance reasonably satisfactory to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (iF) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof a Collateral Access Agreement (the terms of which shall include the right of the Agent to cure defaults under the Refinancing Mortgage), duly executed by such new lender, in form and substance satisfactory to Administrative Agent Agent, and (ivG) as of the date of the granting of any such pledge or deposit Refinancing Mortgage and incurrence of such Indebtedness and after giving effect thereto, no Event of Default or act, condition or event which with notice, lapse of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificateextent that each of the foregoing conditions has been satisfied in the determination of Agent, Agent shall, at the request of Borrowers, at Borrowers' expense, execute and deliver a release of the applicable Mortgage or Mortgages and such other related release of Lien as requested by the new lender and, if requested by the new lender, the owner of such property shall be released from its Obligations under the Financing Agreements, provided, that, such releases shall each be in -------- ---- form and substance satisfactory to Agent;
(m) Liens (i) created by a Retail Store Subsidiary in favor of a Borrower or Obligor to secure advances or financial accommodations made by such Borrower or Obligor for purposes of opening and operating Retail Stores operated by such Retail Store Subsidiary or (ii) Liens created by Catherine's Inc. in favor of Catherines to secure the Indebtedness arising under the Amended and Restated Subordinated Promissory Note, dated January 31, 2000, in the principal amount of $48,999,196.90 made by Catherines, Inc. in favor of Catherines (and assigned by Catherines to Catherines of Nevada, Inc.); which Liens, in each case, are subordinated in favor of and assigned to Agent pursuant to the Financing Agreements;
(n) Liens on the cash surrender value of the life insurance policies referred to in Section 9.9(i) hereof in favor of the issuer of such life insurance policies in connection with the Indebtedness permitted in accordance with Section 9.9(i) hereof; and
(o) Liens listed on Omnibus Schedule 13 hereto.
Appears in 1 contract
Encumbrances. Borrower No Obligor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge Lien or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the Liens and security interests and liens in favor of Collateral Agent for itself and the benefit of Lendersor Pre-Petition Agents; (b) liens Liens in existence on the Petition Date that were not created or suffered to exist in violation of the Pre-Petition Loan Documents; (c) Liens securing the payment of taxesTaxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be Obligor and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens Liens (other than liens Liens securing the payment of taxesTaxes) arising in the ordinary course of Borrower’s or such Subsidiary’s Obligor's business to the extent: (i) such liens Liens secure Indebtedness Debt which is not overdue or (ii) such liens Liens secure Indebtedness Debt relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryObligor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary Obligor as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests Liens securing any Offshore Equipment that has been released by Collateral Agent in connection with a Permitted Property Transfer, to the extent that such Lien is limited to such released Offshore Equipment (including Capital Leases) only; and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower Liens on Equipment purchased in accordance with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information CertificatePermitted Affiliate Investments.
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower permitted under Section 9.9(g) or Guarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and and
(j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatethis Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Allou Health & Beauty Care Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, exceptEXCEPT: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; and (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 100,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Microtel International Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Domestic Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Domestic Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Domestic Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Domestic Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or Guarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC or PPSA financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC or PPSA financing statement filings in respect thereof;
(i) the security interests and liens securing Refinancing Indebtedness to the extent permitted under Section 9.9(g9.9(i) hereof;
(j) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and ;
(jk) the security interests and liens set forth on Schedule 8.4 to the Information Certificate; and
(l) the security interests in and liens upon assets of the Foreign Subsidiaries organized under the laws of Mexico and identified in Section 9.9(f)(iv) hereof in connection with Indebtedness permitted under such Section 9.9(f)(iv) hereof; and
(m) the security interests and liens upon assets of Shanghai C&D Battery Co., Ltd. in connection with Indebtedness permitted under Section 9.9(f)(ii) hereof.
Appears in 1 contract
Encumbrances. Each Borrower shall not, and shall not permit any Subsidiary ------------- to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in secure Indebtedness permitted under Section 9.9(b) hereof;
(f) a first and only deed to secure debt (a "Security Deed") on the aggregate at any time outstanding Distribution and Office Facility arising after the second anniversary of this Agreement so long as each of the following conditions is satisfied in the determination of Lender:
(i) Lender shall have received not less than forty-five (45) days prior written notice of the intention of Duck Head to grant such interests security interest and mortgages do incur such Indebtedness, (ii) the Indebtedness secured by such Real Property, arises from loans in cash or other immediately available funds provided to Duck Head, the proceeds of which are used, first, to pay, the entire outstanding amount of all principal and all accrued interest on the Term Loan, and second, to repay the outstanding principal amount of Revolving Loans which amounts may be reborrowed, (iii) such Security Deed and does not apply to any property of Borrower Duck Head other than the Equipment or real estate so acquiredDistribution and Office Facility, (iv) as of the date of the incurrence of such Indebtedness and the creation of such Security Deed and after giving effect thereto, the Excess Availability shall be not less than $4,000,000, (v) such Security Deed shall be in form and substance satisfactory to Lender, (vi) Lender shall have received a Collateral Access Agreement, duly executed by such new lender, in form and substance satisfactory to Lender, and the indebtedness secured thereby does not exceed the cost (vii) as of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost date of the Equipment granting of any such Security Deed and incurrence of such Indebtedness and after giving effect thereto, no Event of Default or real estate so acquiredact, condition or event which with notice, lapse of time or both would constitute an Event of Default shall exist or have occurred; to the extent that each of the foregoing conditions has been satisfied in the determination of Lender, Lender shall, at the request of Duck Head, at Borrowers' expense, execute and deliver a release of Deed to Secure Debt and such other release of lien as requested by the case may be; new lender, provided, that, such releases shall each be in form and substance satisfactory to Lender;
(fg) liens or rights of setoffs setoff or credit balances of any Borrower with Credit Card Processors Issuers, but not liens on or rights of setoff against any other property or assets of such Borrower pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of such Borrower to the Credit Card Issuers as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; or
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed Two Hundred Thousand Dollars ($15,000,000 200,000) in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, exceptEXCEPT: (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment and Vehicles (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(b) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Streicher Mobile Fueling Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: or file or permit the filing of, or (upon knowledge thereof) permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except the following (collectively, “Permitted Liens”):
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings reasonably diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower, Guarantor or Subsidiary after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits;
(g) pledges and deposits of cash by any Borrower, Guarantor or Subsidiary after the business of Borrower date hereof to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business; provided, that, in connection with any performance bonds issued by Borrower a surety or other person for the account of, or with respect to the performance by, a Loan Party, the issuer of its obligations under the terms such bond shall have waived in writing any rights in or to, or other interest in, any of the lease for Collateral (other than cash collateral pledged to the issuer of such premises; bond) in an agreement, in form and substance reasonably satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower, Guarantor or Subsidiary located on assets the premises of Borrower such Borrower, Guarantor or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to secure indebtedness time in the ordinary course of Borrower permitted under Section 9.9(dbusiness and consistent with current practices of such Borrower, Guarantor or Subsidiary and the precautionary UCC financing statement filings in respect thereof;
(i) belowjudgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges such liens are being contested in good faith and deposits by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of cashenforcement of any such liens is in effect, Cash Equivalents or investment securities by Borrower to secure indebtedness and (iv) Agent may establish a Reserve with respect thereto;
(j) security interests and liens of Borrower Senior Secured Notes Collateral Agent securing the Indebtedness permitted under Section 9.9(g9.9(h) hereof; provided, that, such security interests and liens shall be subject and subordinate to the security interests and liens of Agent pursuant to the terms of the Intercreditor Agreement;
(k) security interests and liens securing the Refinancing Indebtedness permitted under Section 9.9(i) hereof; provided, that, such security interests and liens shall be subject and subordinate to the security interests and liens of Agent pursuant to an intercreditor agreement substantially in the form of the Intercreditor Agreement or otherwise in form and substance reasonably satisfactory to Agent;
(l) liens in favor of customs and revenue authorities arising as a matter of law to secure custom duties in connection with the importation of goods;
(m) security interests and liens to secure Acquired Indebtedness permitted under Section 9.9(j) hereof; provided that (i) the aggregate amount so pledged security interests and liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by a Borrower, Guarantor or deposited, together with the amount of all Letter of Credit Accommodations issued Subsidiary and were not granted in connection with any Hedging Agreementswith, shall not or in anticipation of, the aggregate exceed $2,500,000incurrence of such Acquired Indebtedness by a Borrower, Guarantor or Subsidiary, (ii) as such security interests and liens do not extend to or cover any property or assets of each of a Borrower, Guarantor or Subsidiary other than the thirty (30) days immediately preceding property or assets that secured the date Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such pledge Acquired Indebtedness by a Borrower, Guarantor or deposit Subsidiary and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge security interests do not encumber any Accounts, any Inventory or deposit any assets included in the Borrowing Base;
(n) any lien, encumbrance or other exception to coverage under the title insurance policies (or pro forma policies) received and approved by Agent in connection with the right to demand such pledge or depositMortgage;
(o) shall be required security interests and liens on the assets of any Foreign Subsidiary (other than Capital Stock issued by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and Loan Party) securing Indebtedness permitted under Section 9.9(f) hereof; and
(iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jp) the security interests and liens set forth on Schedule 8.4 to the Information CertificateCertificate which are not otherwise permitted by the other clauses of this Section 9.8. Notwithstanding anything to the contrary contained in this Section 9.8 above, in no event shall the foregoing permit any Borrower, Guarantor or Domestic Subsidiary to create, incur, assume or suffer to exist any security interest, mortgage, pledge, lien, change or other encumbrance, in, on or with respect to any of its assets to secure any liabilities, Indebtedness or obligations of any Foreign Subsidiary.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Restricted Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: except for the following (each a "Permitted Lien"):
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of taxes, assessments or other governmental charges or levies, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Restricted Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens imposed by law (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's or such Restricted Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Restricted Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions or other matters of record disclosed in the title commitments acceptable to Agent delivered by Borrower to Agent in connection with this Agreement affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or the ordinary conduct of the business of Borrower or such Restricted Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and Inventory and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may besecure Indebtedness permitted under Section 9.9(b) hereof; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.Certificate and (g) pledges or deposits by such Person under worker's compensation laws, unemployment insurance laws or similar legislation, or good faith pledges or deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits in connection with self-insurance arrangements, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business consistent with industry practices; (h) liens on Real Property and Equipment securing Indebtedness incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, such property excluding Eligible Real Property and Eligible Equipment of such Person; provided, however, that (i) the lien may not extend to any other property owned by such Person or any of its Subsidiaries, (ii) the Indebtedness (other than any interest thereon) secured by the lien may not be incurred more than 360 days (or thereafter if such lien is created pursuant to a firm commitment to lend entered into within such 360-day period) after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the lien and (iii) Agent shall have a second lien on such property; (i) liens on Eligible Real Property and Eligible Equipment that are subordinate to Agent's liens pursuant to a subordination agreement in form and substance satisfactory to Agent, (j) liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that (i) the liens may not extend to any other property owned by such Person or any of its Subsidiaries, (ii) such liens were existing prior to the consummation of the acquisition and were not created in contemplation of or in connection with such acquisition and (iii) such liens are not on Receivables or Inventory of such Person or a Subsidiary of such Person; (k) liens securing Indebtedness related to Floor Plan Financing Lines; (l) liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to such Person or a Subsidiary of such Person provided that such Indebtedness is subject to the Contribution, Incentive and Offset Agreement;
Appears in 1 contract
Sources: Loan and Security Agreement (Champion Enterprises Inc)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, exceptEXCEPT: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in (i) Equipment (including Capital Leasescapital leases) acquired after the date hereof that does not constitute Collateral not to exceed (A) $15,000,000 in any twelve-month period following the date of this Agreement and (B) $25,000,000 in the aggregate during the term of this Agreement and (ii) purchase money mortgages on real estate acquired after the date hereof not to exceed $15,000,000 4,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights securing the refinancing of setoffs or credit balances of Borrower with Credit Card Processors as any indebtedness secured by purchase money security interests in Equipment and real estate provided that any such refinancing shall be provided by a result of fees non-affiliated Person in an arm's length transaction and chargebackson commercially reasonable terms; (g) deposits of cash with the owner liens securing secured equipment loans or lessor of retail store locations leased and operated capital leases ("EQUIPMENT LOANS") provided by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowa non-affiliated Person, provided, that, such liens which Equipment Loans shall be junior an arm's length transaction and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cashcommercially reasonable terms, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; providedPROVIDED THAT, thatin connection therewith, (i) any Equipment Loans shall be secured only by the aggregate amount so pledged or deposited, together with specific Equipment directly relating to the amount Equipment Loans made by such Person and not by any other assets of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000Borrower, (ii) as of any proceeds received by Borrower from each of Equipment Loan shall be used by the thirty (30) days immediately preceding Borrower to repay the date of such pledge or deposit Obligations hereunder and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect theretoeach Equipment Loan, no Default or Event of Default shall exist or have occurred and be continuingexists hereunder; and (jh) the security interests and liens set forth on Schedule 8.4 9.8 hereto; (i) liens approved by Lender in accordance with Section 9.10(b) hereof; (j) any vendor's lien on Inventory in favor of a vendor from whom Borrower has purchased Inventory, PROVIDED THAT, such vendor has executed and delivered to Borrower for the benefit of Lender a subordination agreement in substantially identical form to the Information Certificatevendors' subordination agreements delivered to Lender on the closing date pursuant to Section 4.1(e) hereof; and (k) any purported lien on merchandise in Borrower's possession evidenced by a protective UCC-1 filing by a person or entity who consigned such merchandise to Borrower, PROVIDED THAT, such person or entity has executed and delivered to Borrower for the benefit of Lender a consignor's waiver letter in substantially identical form to the consignors' waiver letters delivered to Lender on the closing date pursuant to Section 4.1(e) hereof.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside established on its books; ;
(c) mechanics, materialmen, warehousemen, carriers and other non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property that are incurred in the ordinary course of business which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 1,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; ;
(f) liens arising in connection with judgments for the payment of money in an amount not to exceed $250,000 in any one case or rights $500,000 in the aggregate (other than a judgment in the L.A. Lease Litigation) or a lien arising in connection with a judgment for the payment of setoffs money in an amount not to exceed $500,000 in the L.A. Lease Litigation; provided, that, as to any of such liens, (i) the judgment or credit balances other court order giving rise to such lien is being contested in good faith by appropriate proceedings diligently pursued and available to Borrower prior to the commencement of Borrower with Credit Card Processors as a result of fees foreclosure or other similar proceedings, (ii) execution thereon is at all times effectively stayed and chargebacks; (iii) an adequate reserve for such Indebtedness has been established on Borrower's books;
(g) cash deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower liens on assets other than Collateral made in the ordinary course of the business of Borrower to the extent required in connection with workers'
(h) cash deposits or liens on assets other than Collateral to secure the performance by Borrower of its obligations under tenders, contracts (other than contracts for the terms payment of money) or leases, or surety and appeal bonds, in each case incurred in the lease for such premises; (h) liens on assets ordinary course of business consistent with the current practices of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and hereof;
(ji) the security interests and liens set forth on Schedule 8.4 hereto; and
(j) non-statutory liens granted in favor of the PBGC to secure liabilities that would be incurred under Title IV of ERISA in the event of termination of an Employee Plan, provided that Lender has given its prior written consent to the Information Certificategranting of any such non-statutory lien.
Appears in 1 contract
Encumbrances. Each Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; books as required by GAAP;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; books as required by GAAP;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be Real Property (or, in the case of leasehold interests, the value of Borrowers' interest in the Real Property) that is subject thereto; ;
(e) purchase money or other types of security interests in Equipment and the proceeds thereof (including Capital Capitalized Leases) acquired after the date hereof and purchase money or other types of mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower as of the date hereof;
(g) pledges and deposits of cash by any Borrower after the date hereof to 77 secure the performance by of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower of its obligations under the terms as of the lease for such premises; date hereof;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower located on assets the premises of such Borrower (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower and the precautionary UCC financing statement filings in respect thereof;
(i) the security interests in and liens upon the Collateral and mortgages and liens upon the Real Property in favor of Term Loan Agent to secure indebtedness of Borrower permitted under Section 9.9(d) belowthe Term Loan Debt, provided, that, such the security interests in and liens upon the Collateral in favor of Term Loan Agent are and shall at all times be junior subject and subordinate to the security interests and liens therein of Collateral Agent on pursuant to the terms of the Intercreditor Agreement;
(j) judgments and conditions acceptable to Collateral Agent; (i) pledges and deposits other similar liens arising in connection with court proceedings that do not constitute an Event of cashDefault, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) Agent may establish a Reserve with respect thereto;
(k) the security interests and liens of an Insurance Premium Finance Party on the Insurance Premium Collateral to secure the Indebtedness described in and to the extent permitted in Section 9.9 (l) hereof;
(l) liens on Real Property pursuant to or as of permitted by the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingTerm Loan Lender Agreements; and and
(jm) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Lexington Precision Corp)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject theretothereon; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Storage Dimensions Inc)
Encumbrances. Borrower At any time prior to the Trigger Date that the Investment Grade Rating Condition is not satisfied by either (i) Supplier, or (ii) any Guarantor which controls the Project Owner and Supplier and which has provided an Affiliate Guarantee in accordance with Section 7.7(e)(i) or Section 7.8(a) (in each case, a “Rated Entity”), Supplier shall not, and shall not permit any Subsidiary tocause each Supplier Group Entity to not, create, incur, assume, suffer grant or permit allow to exist any security interest, mortgage, pledge, lien, charge Financial Encumbrance in respect of all or any of the Core Collateral in favour of a third party other encumbrance of any nature whatsoever on than Wheaton or any of its assets or propertiesAffiliates, including the Collateral, except: other than:
(a) the security interests and liens of Collateral Agent for itself and the benefit of LendersPermitted Encumbrances; and
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested Financial Encumbrances where in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extenteach case: (i) Wheaton is provided with the same Financial Encumbrance over such liens secure Indebtedness which is not overdue or Core Collateral as such third party; (ii) Wheaton and the third party holder of such liens secure Indebtedness relating Financial Encumbrance enter into an intercreditor agreement on terms satisfactory to claims or liabilities Wheaton, acting reasonably, which are fully insured shall include provisions addressing the priority of Wheaton and being defended at such third party’s interests; and (iii) the sole cost Supplier Group Entity granting such Financial Encumbrance and expense and at the sole risk third party holder of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect Financial Encumbrance comply with the use conditions set forth in Section 3.2(a) mutatis mutandis, including in respect of any security agreement giving effect to such real property or ordinary conduct of Financial Encumbrance and such intercreditor agreement. Despite the business of Borrower or such Subsidiary as presently conducted thereon or materially impair foregoing, any Encumbrance granted by a Supplier Group Entity in compliance with this Section 7.12 at a time when the value of Rated Entity satisfies the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate Investment Grade Rating Condition, shall not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors thereafter become prohibited by this Section 7.12 as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated Investment Grade Rating Condition ceasing to be satisfied by Borrower the Rated Entity in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for future; provided that any such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability Encumbrance shall not be less than $4,000,000permitted to secure Financial Indebtedness which is incurred or for which a person becomes liable, at a time when the Investment Grade Rating Condition is not satisfied by Rated Entity (iii) such pledge including for greater certainty additional drawdowns under any revolving or deposit (or other existing Financial Indebtedness at a time when the right to demand such pledge or deposit) shall be required Investment Grade Rating Condition is not satisfied by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateRated Entity).
Appears in 1 contract
Sources: Precious Metals Purchase Agreement (Sibanye Gold LTD)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary toNeither directly or indirectly, create, incur, assume, incur nor suffer or nor permit to exist any security interest, mortgage, pledge, lien, charge security interest or other encumbrance lien or charge of any nature whatsoever on kind or character upon any asset of its assets Borrower, whether owned at the date hereof or properties, including the Collateral, except: hereafter acquired except (a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of taxes, either assessments or other governmental charges not yet overdue due or the validity of which are being contested in good faith by appropriate proceedings diligently pursued in such a manner as not to make the property forfeitable, (b) liens or charges incidental to the conduct of its business or the ownership of its property and available assets (including, but not limited to, statutory liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other similar persons) which were not incurred in connection with the borrowing of money or the obtaining of an advance or credit, and which do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of its business, (c) liens arising out of judgments or awards against Borrower with respect to Borrower which it shall concurrently therewith be prosecuting a timely appeal or such Subsidiary, as the case may be proceeding for review and with respect to which adequate reserves it shall have been set aside secured a stay of execution pending such appeal or proceedings for review, (d) pledges or deposits to secure obligations under worker’s compensation laws or similar legislation, (e) liens existing on its books; the date hereof and disclosed to Bank in writing, (cf) non-consensual statutory liens granted to Bank, (other than liens securing the payment g) leases or subleases of taxesreal property and leases, subleases, licenses and sublicenses (including licenses of intellectual property granted to third parties) arising granted in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: business, (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (eh) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages liens on real estate not to exceed $15,000,000 in equipment acquired or held by Borrower incurred for financing the aggregate at any time outstanding acquisition of equipment or existing on equipment when acquired so long as such interests lien is confined to the property and mortgages do not apply to any property improvements and proceeds of Borrower other than the Equipment or real estate so acquiredequipment, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not liens incurred in the aggregate exceed $2,500,000extension, renewal or refinancing of Permitted Indebtedness secured by liens described in (iia) as of each through (h), provided any extension, renewal or replacement lien must be limited to the property encumbered by the existing lien and the principal amount, interest rate or amortization/payment schedule of the thirty Permitted Indebtedness may not increase (30) days immediately preceding the date of such pledge or deposit and after giving effect theretocollectively, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate“Permitted Liens”).
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary of its Subsidiaries to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the CollateralCollateral or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to such assets or properties, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) liens in favor of Merchant Payment Processors with respect to Merchant Payment Receivables processed by such Persons; (e) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; (ef) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower Real Property to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(b) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jg) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) security deposits in the ordinary course of business;
(d) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: :
(i) such liens secure Indebtedness which is do not overdue affect Accounts or are otherwise not in imminent danger of foreclosure; or
(ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer (subject to applicable deductibles) or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(de) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(ef) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; and
(g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 hereto or replacements therefor that do not extend to any other property or increase the Information Certificateamounts secured.
Appears in 1 contract
Sources: Loan Agreement (Geologistics Corp)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Working Capital Agent for itself and the benefit of Lenders; the Secured Parties;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and deposits of cash by any Borrower or Guarantor after the date hereof in the aggregate at ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any time outstanding so long as such interests and mortgages do not apply Borrower or Guarantor after the date hereof to any property secure the performance of Borrower tenders, bids, leases, trade contracts (other than for the Equipment repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or real estate so acquiredGuarantor as of the date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance reasonably satisfactory to Working Capital Agent;
(h) liens arising from (i) operating leases and the indebtedness secured thereby does precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not exceed owned by any Borrower or Guarantor located on the cost premises of such Borrower or Guarantor (but not in connection with, or as part of, the Equipment financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or real estate so acquired, Guarantor and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; precautionary UCC financing statement filings in respect thereof;
(fi) liens or rights of setoffs or setoff against credit balances of Borrowers with Credit Card Issuers or Credit Card Processors or amounts owing by such Credit Card Issuers or Credit Card Processors to Borrower with in the ordinary course of business, but not liens on or rights of setoff against any other property or assets of Borrowers, pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of Borrowers to the Credit Card Issuers or Credit Card Processors as a result of fees and chargebacks; ;
(gj) deposits statutory or common law liens or rights of cash setoff of depository banks with respect to funds of Borrowers or Guarantors at such banks to secure fees and charges in connection with returned items or the standard fees and charges of such banks in connection with the owner deposit accounts maintained by Borrowers and Guarantors at such banks (but not any other Indebtedness or lessor obligations);
(k) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowDefault, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Working Capital Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and ;
(jl) the security interests and liens set forth on Schedule 8.4 which are not permitted by the other provisions of Section 9.8 above;
(m) non-consensual security interests and liens which are not permitted by the other provisions of Section 9.8 above to secure Indebtedness and other liabilities in an amount not to exceed $100,000 in the aggregate; and
(n) liens of the trustee for the holders of the Specified Subordinated Indebtedness securing the Specified Subordinated Indebtedness, provided that such liens are junior in rank to the Information Certificatesecurity interests and liens of Working Capital Agent for itself and the benefit of the Secured Parties and subject to the Subordination Provisions.
Appears in 1 contract
Encumbrances. Each Borrower shall not, and shall not permit any Restricted Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or propertiesOTHER ENCUMBRANCE OF ANY NATURE WHATSOEVER ON ANY OF ITS ASSETS OR PROPERTIES, including the CollateralINCLUDING THE COLLATERAL, exceptEXCEPT: (a) the security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its booksCustomary Permitted Liens; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, secure Indebtedness permitted under Section 9.9(b) hereof; (d) liens arising from (i) operating leases and the indebtedness secured thereby does precautionary UCC or PPSA financing statement filings or registrations in respect thereof and (ii) equipment or other materials which are not exceed owned by a Borrower located on the cost premises of such Borrower (but not in connection with, or as part of, the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (ffinancing thereof) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower from time to time in the ordinary course of business and consistent with current practices of Borrowers and the business precautionary UCC or PPSA financing statement filings in respect thereof; (e) leases or subleases of Borrower any portion of the Real Property granted to secure others to the performance by Borrower of its obligations extent permitted under the terms of the lease for such premisesMortgages; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 hereto; and (g) liens on assets of a Borrower or other Restricted Subsidiary (other than any Receivables, Inventory or Equipment or other assets which if not available to Lender would impair Lender=s rights or remedies as to any other Collateral), which liens secure obligations of such Borrower or Restricted Subsidiary other than Indebtedness, if any, which obligations in the Information Certificateaggregate do not exceed $500,000 (provided, that, Borrowers shall promptly provide notice of any such liens to Lender).
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation. the Collateral, exceptEXCEPT: (a) the liens and security interests of Lender and liens of Collateral Agent for itself and the benefit of LendersNord Resources; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate Real Estate not to exceed $15,000,000 1,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate Real Estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule SCHEDULE 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. The Borrower shall notwill not create or suffer to exist, and shall not permit any Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets Subsidiaries to create or suffer to exist, any Encumbrance or any other type of preferential arrangement, upon or with respect to any of its properties, including whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure or provide for the Collateralpayment of any Indebtedness of any Person, except: other than (a) the purchase money liens or purchase money security interests and liens of Collateral Agent for itself and upon or in any property acquired or held by the benefit of Lenders; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising any Subsidiary in the ordinary course of Borrower’s or such Subsidiary’s business to secure the extent: purchase price of such property or to secure indebtedness incurred solely for the purpose of financing the acquisition of such property, so long as such indebtedness does not exceed 100% of the purchase price of such property, (b) Encumbrances existing on such property at the time of the acquisition of such property or the acquisition of such Subsidiary (other than any such Encumbrance created as a result of such acquisition), (c) Permitted Encumbrances, (d) extensions or renewals of any Encumbrance described in clauses (a) through (c) above, provided, that (i) any such liens secure Indebtedness which is not overdue extension or renewal shall be limited to the property theretofore subject to such Encumbrance, (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk principal amount of the insurer or being contested Indebtedness secured by such Encumbrance shall not be increased and (iii) the aggregate principal amount of Indebtedness secured by Encumbrances referred to in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; clauses (da) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do through (c) above shall not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate 5,000,000 at any time outstanding so long as such interests and mortgages do not apply to (it being expressly agreed that any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability refinanced Indebtedness shall not be less than $4,000,000considered new Indebtedness hereunder), or (iiie) such pledge or deposit (or Encumbrances permitted pursuant to Section 5.2 of that certain Credit Agreement by and among New Jersey Natural Gas Company, as Borrower, the right to demand such pledge or deposit) shall be required by financial institutions party thereto as the other party to Lenders, PNC Bank, National Association as the Hedging Agreement Administrative Agent, Summit Bank as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative the Syndication Agent, Bank One, NA as the Documentation Agent and (iv) PNC Capital Markets and Summit Bank as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information CertificateCo-Lead Arrangers.
Appears in 1 contract
Encumbrances. Without Lender's express written consent, Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interestEncumbrance on the Mortgaged Properties, mortgageexcept:
(i) Permitted Encumbrances;
(ii) liens for taxes, pledge, lien, charge assessments or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of taxes, either governmental charges not yet overdue due or the validity of which are being diligently contested in good faith and by appropriate proceedings diligently pursued and available proceedings, provided that (v) if the aggregate amount of all Secured Charges is less than or equal to Borrower or such Subsidiary$100,000, as the case may be and with respect to which adequate reserves shall have been set aside therefor in the books of such Borrower in accordance with generally accepted accounting principles, (w) if the aggregate amount of all Secured Charges exceeds $100,000 either (l) cash or cash equivalents in an amount not less than the amount of such claims shall have been deposited with Lender, in escrow, to be held by Lender during the pendency of such contests or (2) Borrower shall have caused such liens to be duly bonded in accordance with applicable law such that the lien in question attaches only to the bond and not to any Mortgaged Property, (x) no risk of sale, forfeiture or loss of any interest in any Mortgaged Property or any part thereof arises or would arise during the pendency of such contests, (y) such contests do not or would not, in the aggregate, have a material adverse effect on its books; the use, value, operation or ownership of any Mortgaged Property and (cz) non-consensual statutory Borrower shall give prompt notice thereof to Lender;
(iii) carriers', warehousemen's, mechanic's, materialmen's, repairmen's and other similar liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities and which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being diligently contested in good faith and by appropriate proceedings diligently pursued and available proceedings, provided that (v) if the aggregate amount of all Secured Charges is less than or equal to Borrower or such Subsidiary$100,000, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves shall have been set aside therefor in the books of Borrower in accordance with generally accepted accounting principles, (w) if the aggregate amount of all Secured Charges exceeds $100,000, either (1) cash or cash equivalents in an amount not less than the amount of such claims shall have been deposited with Lender, in escrow, to be held by Lender during the pendency of such contests or (2) Borrower shall have caused such liens to be duly bonded in accordance with applicable law such that the lien in question attaches to the bond and not to any Mortgaged Property, (x) no risk of sale, forfeiture or loss of any interest in any Mortgaged Property or any part thereof arises or would arise during the pendency of such contest, (y) such contests do not or would not, in the aggregate, have a material adverse effect on its booksthe use, value, operation or ownership of any Mortgaged Property and (z) Borrower shall give prompt notice thereof to Lender; and
(div) zoning restrictions, easements, licensesrights-of-way, covenants and other restrictions affecting the on use of real property and other similar Encumbrances incurred or entered into in the ordinary course of business which do not or would not, in the aggregate, have a material adverse effect on the use, value, operation or ownership of the Mortgaged Property subject thereto or materially interfere in any material respect with the operation and use of such real property of, or the ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair on, the value of the real property which may be Mortgaged Property subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, ------------- create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower Indebtedness permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g9.9(b) hereof; provided, that, and
(i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge charge, hypothec or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: EXCEPT:
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) pledges and deposits of cash by any Borrower or Guarantor after the date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any Borrower or Guarantor after the date hereof to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower or Guarantor as of the date hereof; PROVIDED, THAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC and PPSA financing statement filings in respect thereof and (ii) equipment or rights other materials which are not owned by any Borrower or Guarantor located on the premises of setoffs such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary Uniform Commercial Code and PPSA financing statement filings in respect thereof;
(i) setoff or credit balances of any Borrower or Canadian Direct with Credit Card Processors Issuers, but not liens on or rights of setoff against any other property or assets of such Borrower or Canadian Direct, pursuant to the Credit Card Agreements (as in effect on the date hereof) to secure the obligations of such Borrowers or Canadian Direct to the Credit Card Issuers as a result of fees and chargebacks; ;
(g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (hj) liens on the assets of Borrower to secure indebtedness the Krane Group, PROVIDED, THAT, the holders of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior have entere▇ ▇▇▇o the Krane Intercreditor Agreement;
(k) judgments and subordinate to the o▇▇▇▇ similar liens arising in connection with court proceedings that do not constitute an Event of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cashDefault, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; providedPROVIDED, thatTHAT, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Agent may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and and
(jl) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Thane International Inc)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except: :
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower or Guarantor as of the date hereof;
(g) pledges and deposits of cash by any Borrower or Guarantor after the date hereof to secure the performance by of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower of its obligations under the terms or Guarantor as of the lease for date hereof; provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such premises; bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings (or similar filings in any foreign jurisdiction) in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on assets the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to secure indebtedness time in the ordinary course of business and consistent with current practices of such Borrower permitted under Section 9.9(dor Guarantor and the precautionary UCC financing statement filings (or similar filings in any foreign jurisdiction) belowin respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges such liens are being contested in good faith and deposits by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of cashenforcement of any such liens is in effect and (iv) Agent may establish a Reserve with respect thereto;
(j) purchase money security interests of a Letter of Credit Issuer under the Letter of Credit Facility of such Letter of Credit Issuer with a Borrower in the Letter of Credit Issuer Priority Collateral Inventory purchased with the proceeds of a letter of credit issued pursuant to such Letter of Credit Facility, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereofthe documents pertaining thereto and any insurance proceeds relating thereto; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all security interest in any such Letter of Credit Accommodations issued in connection with any Hedging Agreements, Issuer Priority Collateral shall not in at all times only secure the aggregate exceed $2,500,000reimbursement obligations of the Borrower for the letter of credit used to purchase the specific Inventory constituting such Letter of Credit Issuer Priority Collateral, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof a Letter of Credit Intercreditor Agreement from such Letter of Credit Issuer, in form and substance satisfactory to Administrative Agent Agent, duly authorized, executed and delivered by such Letter of Credit Issuer, Borrowers and Guarantors and (iviii) in no event shall any Letter of Credit Issuer Priority Collateral be included in any report of Inventory provided by any Borrower or Guarantor to Agent as Eligible Inventory and shall in all cases be separately identified in any report of Inventory provided to Agent;
(k) the security interests and liens of each existing Letter of Credit Issuer pursuant to the terms of the Letter of Credit Facility Agreements of Borrowers with each of such Letter of Credit Issuers, as each is in effect on the date hereof, on the assets of Borrowers (other than Letter of Credit Issuer Priority Collateral) consisting of accounts, chattel paper, deposit accounts, documents, equipment, fixtures, general intangibles, instruments, inventory, investment property and letter-of-credit rights of Borrowers to secure the Indebtedness of Borrowers to such Letter of Credit Issuer permitted under Section 9.9 hereof, provided, that, (i) such security interests and liens as to all existing and hereafter acquired or arising assets and properties of Borrowers (except to the extent of the purchase money security interests of such Letter of Credit Issuer permitted under clause (j) above) are and shall at all times be subject and subordinate to the security interests and liens of Agent pursuant to the terms of the Letter of Credit Intercreditor Agreement of Agent with such Letter of Credit Issuer and (ii) the Letter of Credit Intercreditor Agreement of Agent with each such Letter of Credit Issuer shall at all times be in full force and effect and each Letter of Credit Issuer shall at all times be in compliance with the terms thereof;
(l) the security interests and liens of the Senior Note Trustee in the Senior Note Priority Collateral as of the date hereof to secure the Indebtedness of Parent evidenced by the Senior Notes and Senior Note Guarantors under the Senior Note Indenture as to such pledge Indebtedness permitted hereunder, together with the security interests and liens of the Senior Note Trustee arising after the date hereof in trademarks of Borrowers and Guarantors or deposit license agreements or other intangible assets of Borrowers and Guarantors of the same type or category as the Senior Note Priority Collateral to secure such Indebtedness, provided, that, as to any such security interests and liens arising after giving the date hereof: (i) such Borrower or Guarantor shall be required to grant such security interests or liens under the terms of the Pledge and Security Agreement, dated as of March 22, 2002, by Parent and Senior Note Guarantors in favor of the Senior Note Trustee (as in effect as of the date hereof), (ii) such security interests and liens shall be subject and subordinate in priority to the security interests and liens of Agent in any such trademarks or other intangible assets pursuant to the terms of an intercreditor agreement between Senior Note Trustee and Agent in form and substance satisfactory to Agent, as duly executed, authorized and delivered by Senior Note Trustee and acknowledged and agreed to by Borrowers and Guarantors, (iii) Agent shall have received prior written notice of the intention of Parent or Senior Note Guarantors to grant such security interests or liens and true, correct and complete copies of all agreements, documents and instruments related thereto, no Default together with such other information with respect thereto as Agent may request;
(m) the security interests and liens of Agent for the benefit of the bank or Event other financial institution that is party to the Interest Rate Protection Agreements to the extent provided for herein and subject to the terms hereof;
(n) the security interests and liens of Default a Factor in the Factor Priority Collateral to secure the Indebtedness of Borrowers to such Factor permitted under Section 9.9(k) hereof; provided, that, such security interests and liens of the Factors shall exist or have occurred be subject to the terms and be continuing; conditions of the Factor Assignment Agreements;
(o) the security interests in and liens and mortgages upon the Real Property of PE Real Estate located in Seneca, South Carolina arising after the date hereof to secure the Indebtedness of PE Real Estate permitted under Section 9.9(l) hereof;
(jp) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Sources: Loan and Security Agreement (Perry Ellis International Inc)
Encumbrances. Neither Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including including, without limitation, the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to a Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of a Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiarya Borrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of either Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.;
Appears in 1 contract
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: EXCEPT:
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(b) liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, or such Guarantor or Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; ;
(c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's, Guarantor's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower such Borrower, Guarantor or such Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property Real Property which do not interfere in any material respect with the use of such real property Real Property or ordinary conduct of the business of Borrower such Borrower, Guarantor or such Subsidiary as presently conducted thereon or materially impair the value of the real property Real Property which may be subject thereto; ;
(e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not Real Property to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; secure Indebtedness permitted under Section 9.9(b) hereof;
(f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business current practices of such Borrower to secure the performance by Borrower of its obligations under the terms or Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ig) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor after the date hereof to secure indebtedness the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Borrower permitted under Section 9.9(g) or Guarantor as of the date hereof; providedPROVIDED, thatTHAT, in connection with any performance bonds issued by a surety or other person, the issuer of such bond shall have waived in writing any rights in or to, or other interest in, any of the Collateral in an agreement, in form and substance reasonably satisfactory to Lender;
(h) liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or Guarantor located on the premises of such Borrower or Guarantor (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower or Guarantor and the precautionary UCC financing statement filings in respect thereof;
(i) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, PROVIDED, THAT, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued such liens are being contested in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000are required by GAAP have been made therefor, (iii) a stay of enforcement of any such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof liens is in form and substance satisfactory to Administrative Agent effect and (iv) as of the date of such pledge or deposit and after giving effect Lender may establish a Reserve with respect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.and
Appears in 1 contract
Sources: Loan and Security Agreement (Little Switzerland Inc/De)
Encumbrances. Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersAgent; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money liens and security interests as permitted in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding so long as such interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d9.9(c) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (jf) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Neither Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except: (a) the liens and security interests and liens of Collateral Agent for itself and the benefit of LendersLender; (b) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to Borrower or such SubsidiaryBorrower, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; (d) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of such Borrower or such Subsidiary as presently conducted thereon or materially impair the value of the real property which may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 200,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of such Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, as the case may be; and (f) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower to secure indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect thereto, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance satisfactory to Administrative Agent and (iv) as of the date of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
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Encumbrances. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to, create, incur, assume, assume or suffer or permit to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets the Premises or properties, including the Collateral, except: EXCEPT:
(ai) the liens and security interests and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(bii) liens securing the payment of taxes, either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such Subsidiary, as the case may be Guarantor and with respect to which adequate reserves have been set aside on its books; ;
(ciii) non-consensual statutory liens (other than liens securing the payment of taxes) arising in the ordinary course of such Borrower’s 's or such Subsidiary’s Guarantor's business to the extent: (iA) such liens secure Indebtedness indebtedness which is not overdue or (iiB) such liens secure Indebtedness indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower or such SubsidiaryGuarantor, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on its books; ;
(div) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which do not interfere in any material respect with the use of such real property or ordinary conduct of the business of such Borrower or such Subsidiary Guarantor as presently conducted thereon or materially impair the value of the real property which may be subject thereto; ;
(ev) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 property, in each case, acquired after the aggregate at any time outstanding date hereof so long as such security interests and mortgages do not apply to any property of a Borrower or Guarantor other than the Equipment or real estate property so acquired, and the indebtedness Indebtedness secured thereby does not exceed the cost of the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost of the Equipment or real estate property so acquired, as the case may be; ;
(fvi) liens or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees pledges and chargebacks; (g) deposits of cash with by any Borrower or Guarantor after the owner or lessor of retail store locations leased and operated by Borrower date hereof in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security benefits consistent with the business practices of Borrower to secure the performance by Borrower of its obligations under the terms Borrowers and Guarantor as of the lease for such premises; date hereof;
(h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; (ivii) pledges and deposits of cash, Cash Equivalents or investment securities cash by Borrower Borrowers after the date hereof to secure indebtedness the performance of Borrower permitted under Section 9.9(g) tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), and other similar obligations in each case in the ordinary course of business consistent with the practices of Borrowers and Guarantor as of the date hereof; provided, that, (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreementsperformance bonds issued by a surety or other person, the issuer of such bond shall not have waived in the aggregate exceed $2,500,000writing any rights in or to, (ii) as of each or other interest in, any of the thirty (30) days immediately preceding the date of such pledge or deposit and after giving effect theretoCollateral in an agreement, Excess Availability shall not be less than $4,000,000, (iii) such pledge or deposit (or the right to demand such pledge or deposit) shall be required by the other party to the Hedging Agreement as a condition to it entering into such contract with Borrower and Administrative Agent shall have received evidence thereof in form and substance reasonably satisfactory to Administrative Agent Lender;
(viii) liens arising from (A) operating leases and the precautionary UCC financing statement filings or registrations in respect thereof and (ivB) as of equipment or other materials which are not owned by a Borrower located on the date premises of such pledge Borrower (but not in connection with, or deposit as part of, the financing thereof) from time to time in the ordinary course of business and after giving effect thereto, no Default or Event consistent with current practices of Default shall exist or have occurred Borrowers in and be continuing; the precautionary UCC financing statement filings in respect thereof;
(ix) liens and (j) the security interests and liens set forth on Schedule 8.4 5(h)(ix) attached.
(x) liens and security interests on the Collateral in favor of Congress Financial Corporation to secure the Information CertificateIndebtedness of, among others, Borrowers and Guarantor to Congress Financial Corporation permitted under Section 5(i) below; and
(xi) liens and security interests on the real property of Guarantor in favor of the SouthTrust Bank to secure the Indebtedness of, among others, Borrowers and Guarantor to SouthTrust permitted under Section 5(i) below.
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Sources: Loan Agreement (JLM Industries Inc)