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
Samples: 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
Samples: 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. 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
Samples: 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. 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
Samples: Credit Agreement (Lawson Products Inc/New/De/), Credit Agreement (Lawson Products Inc/New/De/)
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 10000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 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
Samples: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries 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
Samples: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, 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
Samples: 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 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
Samples: Loan and Security Agreement (Eagle Food Centers Inc), Loan and Security Agreement (Eagle Food Centers Inc)
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
Samples: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)
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
Samples: 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, 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
Samples: 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
Samples: Loan and Security Agreement (Arlington Hospitality Inc), Loan and Security Agreement (Arlington Hospitality 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
Samples: 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 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
Samples: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise 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
Samples: Loan and Security Agreement (Anvil Knitwear Inc), Loan and Security Agreement (Anvil Holdings Inc)
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
Samples: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific 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 Xxxxx Fargo Bank (“Xxxxx”) on cash collateral deposited with Chase and/or Xxxxx 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 Xxxxx 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
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
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 Lien of any nature whatsoever on any of its assets or propertiesproperty, including including, without limitation, the Collateral, except: other than the following (“Permitted Liens”): (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 is being contested in good faith by appropriate proceedings, and as to which Borrower shall, if appropriate under GAAP, have set aside on its books and records adequate reserves, provided, that such contest does not have a material adverse effect on the ability of Borrower to pay any of the Liabilities, or the priority or value of Administrative Agent’s Lien in the Collateral (other than with respect to other Permitted Liens provided for herein); (b) deposits under workmen’s compensation, unemployment insurance, social security, leases and other similar laws; (c) Liens in favor of Administrative Agent (for the ratable benefit of Lenders and Administrative Agent); (d) 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 ten (10) calendar days, that 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 for which adequate appropriate reserves have been set aside on its booksestablished or that are not yet due and payable; (ce) non-consensual statutory liens (other than liens securing the payment which arise by operation of taxes) arising law in the ordinary course of Borrower’s or such Subsidiary’s business to the extent: (i) such business, other then 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 arise by operation 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 booksEnvironmental Laws; (df) zoning restrictions, building codes, easements, rights of way, licenses, covenants and other similar 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 theretoProperty; (eg) purchase money security interests upon or 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 acquired 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 held by Borrower in the ordinary course of the business of Borrower to secure the performance by Borrower purchase price 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, property so long as: (i) the aggregate amount so pledged or deposited, together with the amount of all Letter of Credit Accommodations issued in connection with indebtedness relating to such purchase money security interests and Capitalized Lease Obligations does not at any Hedging Agreements, shall not one time outstanding exceed Five Hundred Thousand Dollars ($500,000) in the aggregate exceed $2,500,000at any time, (ii) as of each such lien shall attach only to the property (and the proceeds thereof) to be acquired; (iii) the principal amount of the indebtedness incurred shall not exceed one hundred percent (100%) of the purchase price of the item or items purchased and ( iv) such Lien shall be created within 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 acquisition of such pledge or deposit and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingthe related asset; and (jh) the security interests and liens any Liens set forth on Schedule 8.4 9.1 and any renewal or refinancing of the indebtedness for which such liens were granted provided that the amount of such indebtedness with respect to any renewal or refinancing is not increased and the liens with respect to such indebtedness do not extend beyond the Collateral listed thereon; (i) Liens consisting of judgment liens that are inferior in right to the Information CertificateLiens of Lender hereunder and are with respect to judgments that do not constitute an Event of Default under Section 10(e) hereof; or (j) any escrow arrangements (whether involving cash, stock or other Property) pursuant to any Acquisition Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (ExamWorks Group, Inc.), Loan and Security Agreement (ExamWorks Group, 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;
(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
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics 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
Samples: Loan Agreement (G G S Plastic Engineering Inc), Loan Agreement (G G S Plastic Engineering 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
Samples: Credit Agreement (Leucadia National Corp), Credit Agreement (National Beef Packing Co LLC)
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
Samples: Loan and Security Agreement (Source Interlink Companies Inc), Loan and Security Agreement (Source Interlink Companies 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
Samples: Loan and Security Agreement (Teardrop Golf Co), Loan and Security Agreement (Navarre Corp /Mn/)
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
Samples: 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
Samples: Credit Agreement (Natural Resource Partners Lp), Credit Agreement (Natural Resource Partners Lp)
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 Lien on any of its assets or propertiesassets, including the Collateral, except: other than the following (collectively, “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, fees, assessments, or other governmental charges or levies either not yet overdue delinquent or the validity of which is being contested in good faith by appropriate proceedings, and as to which such Obligor shall, if appropriate under GAAP, have set aside on its books and records adequate reserves; (b) 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 for the repayment of borrowed money) 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 Business; (c) the Liens in favor of Bank; (d) Liens which arise by operation of law, other than Liens which arise by operation of Environmental Laws, incurred in the Ordinary Course of Business (for sums not constituting borrowed money) that are not delinquent for a period of more than 30 days or that 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 for which adequate reserves have been set aside on its booksestablished in accordance with GAAP (if so required); (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; (de) zoning restrictions, easements, licenses, covenants and other restrictions affecting the use of real property which Property that do not interfere in any material respect with secure monetary obligations and do not materially impair the use of such real property Property for its intended purposes 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 theretothereof; (ef) Liens described on Schedule 6.1 hereof, provided that such Liens shall secure only those obligations which they secure on the Closing Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof; (g) purchase money security interests in Equipment (including on equipment of Borrowers securing Capital Leases) and Leases or purchase money mortgages on real estate Debt in each case permitted by Section 6.2(b); and (h) mechanics’, materialmen’s, suppliers’, repairmen’s or other like Liens arising in the Ordinary Course of Business (for sums not to constituting borrowed money) that are not delinquent for a period of more than 30 days or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP (if so required); provided, that the aggregate amount secured by such mechanics’, materialmen’s, suppliers’, repairmen’s or other like Liens shall not exceed $15,000,000 in the aggregate 300,000 at any time outstanding so long as such interests and mortgages do not apply (the Liens referred 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; this clause (h) liens on assets of Borrower are referred to secure indebtedness of Borrower permitted under Section 9.9(d) belowherein as “Permitted Mechanics Liens”). Such Obligor shall not, provided, that, and 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, Obligor shall not in permit any of its Subsidiaries to, permit the aggregate exceed $2,500,000filing of any financing statement naming such Obligor or any Subsidiary as debtor, (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 except for financing statements filed with respect to demand such pledge or deposit) shall be required Liens expressly permitted 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 2 contracts
Samples: Loan and Security Agreement (Teavana Holdings Inc), Loan and Security Agreement (Teavana Holdings 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
Samples: General Security Agreement (SMTC Corp), General Security Agreement (SMTC Corp)
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
Samples: Credit Agreement (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
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
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings 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
Samples: Us Loan Agreement (SMTC Corp), Us Loan Agreement (SMTC Corp)
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
Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
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. 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
Samples: Loan and Security Agreement (Storage Dimensions 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 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. 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 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; 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 Borrowers 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 their assets or properties, including including, without limitation, the Collateral, except: :
(a) the liens and security interests of Agent and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, 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 or such Subsidiary, as the case may be Borrowers and with respect to which adequate reserves have been set aside on its their books; *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(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 Borrowers’ 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 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 their 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 Borrowers 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 Borrowers other than the Equipment or real estate so acquired, acquired and the indebtedness secured thereby does not exceed the cost of the Equipment any additions or real estate so acquiredaccessions thereto, 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 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 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 (“Permitted Liens”):
(a) the security interests and liens of Collateral Agent for itself and the benefit of Administrative Agent and 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, 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(d) 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 Administrative 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 Administrative 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 Certificate;
(k) liens securing the CL Obligations, so long as the Intercreditor Agreement or a replacement intercreditor agreement satisfactory to Administrative Agent and all the Lenders is in effect;
(l) liens on the assets of Newark Paperboard Products, Ltd. securing Indebtedness of Newark Paperboard Products, Ltd. to TD Mortgage, to the extent permitted by the terms of Section 9.9; and
(m) any security created pursuant to the general conditions of a bank operating in the Netherlands based on the general conditions drawn up by the Netherlands Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) and the Consumer Union (Consumentenbond).
Appears in 1 contract
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.
Appears in 1 contract
Samples: Loan Agreement (JLM Industries 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
Samples: 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 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 000 Xxxxxx Xxxx, 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. 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 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 Borrowers and with respect to which adequate reserves have been set aside on its their 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 Borrowers' 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 their 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 Borrowers 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 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 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) subordinate liens and security interests of the Subordinated Lenders securing indebtedness and subject to the intercreditor and subordination agreement in favor of Lender referred to in Section 9.9(d) hereof; (g) liens and security interests with respect to the Real Property of LFI located in Eldersburg, Maryland securing indebtedness permitted under Section 9.9(e) or (f) hereof; (h) liens or rights of setoffs setoff on or against credit balances of Borrower Borrowers with Credit Card Processors Issuers (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 as a result of fees and chargebacks; (gi) deposits of cash with the owner or lessor of retail store locations premises leased and operated by a Borrower in the ordinary course of the business of Borrower Borrowers' to secure the performance by such 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 liens and 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
Samples: Loan and Security Agreement (Delco Remy International Inc)
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: except (a) the security interests and liens Liens of Canadian Collateral Agent for itself and the benefit of LendersAgent, Lender and/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 anytime 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 requires the discharge thereof prior to the advance of the initial Revolving Loans pursuant to this Agreement); and (g) Liens to secure Permitted Inter-Company Debt.
Appears in 1 contract
Encumbrances. Borrower shall not, and shall will not permit any Subsidiary 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, except: provided, however, that the foregoing shall not restrict nor operate to prevent:
(a) the security interests and liens of Collateral Agent for itself and the benefit of Lenders; (bi) liens securing arising by statute in connection with worker’s compensation, unemployment insurance, old age benefits, social security obligations, taffies, assessments, statutory obligations or other similar charges, good faith cash deposits in connection with tenders, contracts or leases to which Borrower is a party or other cash deposits in any such foregoing case that is required to be made in the payment ordinary course of taxesbusiness, either 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;
(ii) 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;
(iii) liens to secure public funds or other pledges of funds required by law to secure deposits;
(iv) utility easements, building, restrictions and available to Borrower such other encumbrances or such Subsidiary, charges against real property as the case may be and Eire of a nature generally existing with respect to which adequate reserves have been set aside on its books; (c) non-consensual statutory liens (other than liens securing the payment properties 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 a similar character 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 way affect the marketability of the same on 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 Borrower; and
(v) liens securing purchase money Indebtedness of the real property which may be subject thereto; (e) purchase money security interests Borrower in Equipment (including Capital Leases) and purchase money mortgages on real estate an aggregate amount not to exceed One Million Dollars ($15,000,000 in the aggregate at 1,000,000) on 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 Certificatedetermination.
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; Secured Parties;
(b) liens securing the payment of taxes, either (i) 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 Subsidiary and with respect to which adequate reserves have been set aside on its books; books or (ii) identified on Schedule 9.8 hereto;
(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 business (including such liens in favor of landlords, warehousemen and mechanics and similar liens) to the extent: (i) extent such liens secure Indebtedness which is not overdue or (ii) such liens secure Indebtedness other 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 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 in accordance with GAAP and other than liens identified on Schedule 9.8 hereof;
(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 (including Capital Leases) 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 the owner by any Borrower or lessor of retail store locations leased and operated by Borrower any Subsidiary 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 Borrower as of the date hereof;
(g) pledges and deposits of cash by any Borrower or any Subsidiary in the ordinary course of business with any financial institution at which a deposit account of such Borrower or such Subsidiary is maintained to secure obligations of such Borrower to such financial institution in connection with such deposit account and the cash management services provided by such financial institution for which such deposit account is used consistent with the current practices of Borrower or such Subsidiary as of the date hereof;
(h) pledges and deposits of cash by any Borrower or any of Subsidiary of Borrower to secure the performance by Borrower of its tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations, appeals and other similar obligations under in each case in the terms ordinary course of the lease for business of such premisesBorrower; (h) liens on assets of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) below, provided, that, in connection with any performance bonds issued by a surety or other person, the issuer of such liens bond shall be junior not have any rights in or to, or other interest in (whether contingent or otherwise), any of the Collateral other than the pledges or deposits of cash and subordinate as to the liens any pledges in respect of Collateral Agent on terms and conditions acceptable to Collateral Agent; an appeal, after giving effect thereto, Excess Availability is not less than $5,000,000;
(i) pledges liens or other security interests arising from (i) operating leases and deposits the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by any Borrower or any Subsidiary located on the premises of cashsuch Borrower or such Subsidiary (but not in connection with, Cash Equivalents or investment securities by as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Borrower to secure indebtedness or any Subsidiary of any Borrower permitted under Section 9.9(gand the precautionary UCC financing statement filings in respect thereof;
(j) hereofjudgments 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 liens is in effect;
(k) the security interests and liens on assets of any Foreign Subsidiary to secure Indebtedness of such Subsidiary permitted under Section 9.9 hereof;
(l) Intentionally deleted;
(m) security interests and liens granted by any Borrower or deposit (or any Subsidiary to secure Indebtedness and other obligations otherwise permitted hereunder not to exceed $50,000 so long as in the right to demand case of security interests and liens on any assets of any Borrower, such pledge or deposit) shall be required by the other party security interests and liens are subordinate to the Hedging security interests and liens of Agent and are otherwise permitted under any other agreement to which such Borrower or Subsidiary is a party or by which its assets or properties are bound;
(n) the security interests in and liens upon the Timet Collateral to secure the Timet Obligations granted by Xxxxxx Parent to Timet pursuant to the Timet 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 effect on the Timet Closing Date;
(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 (jo) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Encumbrances. Borrower (i) Subject to Sections 9.2(c)(ii) and 9.2(c)(iii), each Party and its Affiliates may mortgage, pledge or otherwise Encumber all or any portion of its interests in the JV Interests in connection with a financing or hedging transaction (each, a “Permitted Pledge”); provided, that (A) the encumbering Party shall notremain liable for all obligations relating to such JV Interests, (B) such Permitted Pledge shall be subject and shall not permit subordinate to the rights of the other Party under this Agreement and any Subsidiary toAssociated Agreement, create, incur, assume, suffer or permit to exist including any security interestinterest provided for herein or in any Associated Agreement, mortgagewhich subordination shall be expressly for the benefit of the other Party, pledgeand, lien(C) for the avoidance of doubt, charge such Encumbrance is subject to the encumbering Party’s obligation to pay its Working Interest Share of all Operating Costs that are chargeable to such Party pursuant to this Agreement and any applicable Associated Agreement.
(ii) Any foreclosure or exercise of other secured party remedies with respect to any Permitted Pledge shall be deemed to be a Transfer subject to the restrictions of this Article 9.
(iii) During the Restricted Period, if any member of the DGOC Group desires to enter into a securitization or other encumbrance financing transaction (a “Securitization Transaction”) with respect to its interests in the JV Interests pursuant to which DGOC (or the applicable member of the DGOC Group) would be required to forfeit its ability or right to effect an Asset Separation with respect to Tranche JV Interests in any nature whatsoever on Acquisition Tranche, (A) such member of the DGOC Group shall deliver notice to Oaktree of its desire to enter into such Securitization Transaction and its request for Oaktree’s consent thereto, which notice shall include a reasonably detailed description and overview of such proposed Securitization Transaction and the affected JV Interests and such other documentation and information as DGOC or any of its assets Affiliates possess or properties, including the Collateral, except: (a) the security interests control 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 DGOC determines in good faith by appropriate proceedings diligently pursued would assist Oaktree in its analysis and available to Borrower or evaluation of such Subsidiary, as Securitization Transaction and (B) such member of the case may be and DGOC Group shall not consummate such Securitization Transaction with respect to any Tranche JV Interests in such Acquisition Tranche without the prior written consent of Oaktree, which adequate reserves may be withheld in its sole discretion; provided, that if Oaktree fails or refuses to consent to such Securitization Transaction within ten (10) Business Days following its receipt of DGOC’s written request therefor (such period, the “Securitization Transaction Review Period”), then such member of the DGOC Group shall have been set aside on the right to effect an Asset Separation with respect to the applicable Acquisition Tranche prior to effecting such Securitization Transaction (provided that, unless otherwise agreed to in writing by the Parties, any such Asset Separation shall be deemed to be null and void if such member of the DGOC Group fails to consummate the applicable Securitization Transaction reasonably promptly following the occurrence of such Asset Separation); provided, further, that in lieu of denying its books; consent to such Securitization Transaction, Oaktree may elect to participate in such Securitization Transaction with respect to its interests in and to the applicable Tranche JV Interests in such Acquisition Tranche, in which case the provisions of Section 9.4 shall apply, mutatis mutandis. If, during the Restricted Period, Oaktree consents, or is deemed to have consented, to a member of the DGOC Group entering into a Securitization Transaction that restricts an Asset Separation, Oaktree shall be deemed to have waived its right to seek an Asset Separation as to the Tranche JV Interests that are subject to such Securitization Transaction if, and only if, the applicable member of the DGOC Group actually consummates such Securitization Transaction with respect to such Tranche JV Interests. Notwithstanding anything to the contrary herein, during the Securitization Transaction Review Period applicable to a Securitization Transaction, DGOC shall (cand shall cause each other applicable member of the DGOC Group to) nonuse commercially reasonable efforts (without obligation to incur any out-consensual statutory liens (of-pocket expenses or provide any consideration in connection therewith), subject to any applicable confidentiality, privilege or other than liens securing restrictions with respect to such Securitization Transaction in favor of the payment DGOC Group or any other Third Parties which prohibit disclosure to the Oaktree Group, to provide to Oaktree, as soon as reasonably practicable, any such additional information as is reasonably requested by Oaktree in connection with its evaluation of taxes) arising the applicable Securitization Transaction, to the extent such information is in the ordinary course possession or control of Borrower’s any member of the DGOC Group (or such Subsidiary’s business to the extent: (i) extent the same could be obtained through the exercise of commercially reasonably efforts of any member of the DGOC Group but in 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 case at the sole cost and expense and at the sole risk of the insurer Oaktree); provided that, DGOC shall use its commercially reasonable efforts (without any obligation to incur any out-of-pocket expenses or being contested provide any consideration in good faith by appropriate proceedings diligently pursued and available connection therewith) to Borrower obtain waivers or consents in respect of such Subsidiary, in each case prior confidentiality restrictions to enable DGOC or its applicable Affiliate to disclose any applicable information or materials 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 CertificateOaktree Group.
Appears in 1 contract
Samples: Participation Agreement (Diversified Energy Co PLC)
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 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 any 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) 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 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 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 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, (i) such liens shall be junior are being contested in good faith and subordinate to the 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 of Collateral is in effect and (iv) Agent on terms and conditions acceptable to Collateral Agent; may establish a Reserve with respect thereto;
(ij) pledges and deposits of cash after the date hereof to secure obligations under appeal bonds or as otherwise required in connection with court proceedings (including, without limitation, surety bonds, security for costs of litigation where required by law and letters of credit) or any other instruments serving a similar purpose; provided, that, (i) as of the date of the pledge and deposit of such cash, Cash Equivalents and after giving effect thereto, the aggregate amount of the Excess Availability shall be not less than $10,000,000 and (ii) any judgment in connection with which such appeal bond or investment securities by Borrower other instruments are required shall not constitute an Event of Default;
(k) liens in favor of customs and revenue authorities arising as a matter of law to secure indebtedness payment of Borrower custom duties in connection with the importation of goods so long as such liens attach only to the imported goods;
(l) liens to secure Indebtedness of Borrowers and Guarantors permitted under Section 9.9(g9.9(h) hereof; provided, that, (i) such liens shall only encumber the aggregate amount so pledged or depositedReal Property owned by Borrowers as of the date hereof, together with the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreementsfixtures thereon, shall not in the aggregate exceed $2,500,000licenses, permits and other general intangibles directly related thereto, and proceeds thereof, 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 in form and substance satisfactory to Administrative Agent and (iv) as of the date of incurring such pledge or deposit liens and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(m) the pledge and deposit by Borrowers of cash in favor Xxxxx Fargo Bank, N.A. to secure Indebtedness permitted under Section 9.9(g) of this Agreement; and and
(jn) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
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
Samples: 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. 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, 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 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 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 in the Customer 2 Accounts in favor of Customer 2 Factoring Agent pursuant to the sales of Customer 2 Accounts under the Customer 2 Factoring Agent Discount Documents to the extent provided in, and in accordance with the terms and conditions of, Section 9.7(b)(vi) hereof; and
(k) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
Samples: Loan and Security Agreement (Lighting Science Group 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; 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 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 Certificate.
Appears in 1 contract
Samples: Loan and Security Agreement (Image Entertainment 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 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 Borrowers and with respect to which adequate reserves have been set aside on its their 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 Borrowers' business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue for a period of more than thirty (30) days 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 SubsidiaryBorrowers, in each case under clauses (A) or (B), 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 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 Borrowers 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) securing the indebtedness permitted under Section 9.9(f) and, in addition thereto, purchase money security interests in Equipment (including capital leases) and purchase money mortgages on real estate not to exceed $15,000,000 500,000 in the aggregate at any time outstanding outstanding, so long as such security interests and mortgages permitted under this Section 9.8(e) 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; (f) liens or rights of setoffs setoff on or against credit balances of Borrower Borrowers with Credit Card Processors Issuers (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 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 a Borrower in the ordinary course of the business of Borrower Borrowers' to secure the performance by such Borrower of its obligations under the terms of the lease for such premises; (h) liens on assets pledges or deposits of Borrower to secure indebtedness of Borrower permitted under Section 9.9(d) belowcash in connection with worker's compensation, provided, that, such liens shall be junior and subordinate to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agentunemployment insurance or other social security legislation; (i) pledges and deposits of cash, Cash Equivalents or investment securities by Borrower cash to secure indebtedness the performance of Borrower permitted under Section 9.9(g) hereof; providedbids, thattrade contracts (other than for borrowed money), (i) the aggregate amount so pledged or depositedstatutory obligations, together with the amount surety and appeal bonds, performance bonds and other obligations of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not a like nature incurred 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 continuingbusiness; and (j) the liens and security interests and liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Trans World Entertainment Corp)
Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any JLM Domestic Subsidiary or Chem Canada 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:
(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 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; ;
(ciii) 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: (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 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; ;
(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 Borrower such Borrower, Guarantor or such Subsidiary 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 Real 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 Borrower a Borrower, Subsidiary or Guarantor other than the Equipment or real estate Real 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 Real Property so acquired, as the case may be; be and is otherwise permitted under Section 9.9(b);
(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, Subsidiary 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, Subsidiaries and Guarantors 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 cashcash by Borrowers, Cash Equivalents or investment securities by Borrower Guarantors and Subsidiaries 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, such Subsidiaries and Guarantors as of the date hereof; providedPROVIDED, thatTHAT, (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) equipment or other materials which are not owned by a Borrower, Guarantor or Subsidiary, as of the date case may be, located on the premises of such pledge Borrower, Guarantor or deposit Subsidiary, as the case may be (but not in connection with, or 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 hereto;
(x) judgment liens in respect of judgments that would not cause an Event of Default under Section 10 hereof;
(xi) liens and security interests on the Collateral and other assets of Chemicals, JLM Realty, Inc. and Terminals in favor of the Term Loan Lender to secure the Information CertificateIndebtedness of Chemicals and Terminals to Term Loan Lender permitted under Section 9.9 below; and
(xii) liens and security interests on the Real Property of Parent located at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx, in favor of the SouthTrust Bank to secure the Indebtedness of Borrowers and Guarantors to SouthTrust Bank permitted under Section 9.9 below.
Appears in 1 contract
Encumbrances. Borrower and each Guarantor 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 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 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 taxestaxes as provided in clause (b) above) 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 Real Property which (i) are disclosed in any endorsement to, commitment for or policy of title insurance issued to the Agent as of the Closing Date with respect to such Real Property, or (ii) 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, 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 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 pledges and chargebacks; (g) deposits of cash with the owner or lessor of retail store locations leased and operated 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 consistent with the business current practices of Borrower to secure the performance by Borrower of its obligations under the terms or such Guarantor as of the lease for such premisesdate hereof or as otherwise required by applicable law; (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 or any 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 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) Guarantor 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 continuinghereof; and (j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.76
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; Lenders and the security interests and liens of Agent for the benefit of itself, any Lender, any Affiliate of any Lender or any other financial institution acceptable to Agent (and in each case as to any such Lender, Affiliate or other financial institution only to the extent approved by Agent) that is party to a Hedge 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 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 which is being contested in good faith and by appropriate proceedings, diligently pursued and available to such Borrower, Guarantor or Subsidiary 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 Borrower such Borrower, Guarantor or such Subsidiary, but in each case under clause (i) and (ii) hereof, (A) prior to the commencement of foreclosure or other similar proceedings and proceedings, (B) with respect to which adequate reserves have been set aside on its books, (C) subject to the right of Agent, at its option, to establish a Reserve in respect thereof (which Reserve shall be terminated upon the payment and satisfaction in full of such Indebtedness and the receipt by Agent of evidence thereof satisfactory to Agent or may be used by Agent to pay such Indebtedness after notice to Borrower Agent in the event of the commencement or threatened commencement (to the extent such threat is imminent as determined in good faith by Agent) of any action by the party to whom such Indebtedness is owed to exercise its remedies with respect thereto or to the extent necessary for Agent to exercise any of its rights or remedies); and (D) as to any such liens (or the Indebtedness secured thereby) that are being contested, the aggregate amount of the Indebtedness secured by all such liens at any time outstanding shall not exceed $1,000,000;
(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 or, in the case of Real Property subject to the Mortgages, 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 satisfactory to Agent in good faith;
(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) statutory or common law liens or rights of 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 deposit accounts maintained by Borrowers and Guarantors 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 Borrowers in the ordinary course of the business of Borrower Borrowers to secure the performance by Borrower Borrowers 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) 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 such liens are being contested in good faith and by appropriate proceedings diligently pursued and available to such Borrower, Guarantor 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 $2,500,000Subsidiary, (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 (which Reserve shall be terminated simultaneously with the payment and satisfaction in full of the date Indebtedness secured thereby and the receipt by Agent of evidence thereof satisfactory to Agent or may be used by Agent to pay such pledge Indebtedness after notice to Borrower Agent in the event of the commencement or deposit and after giving effect thereto, no Default threatened commencement (to the extent such threat is imminent as determined in good faith by Agent) of any action by the party to whom such Indebtedness is owed to exercise its remedies with respect thereto or Event to the extent necessary for Agent to exercise any of Default shall exist its rights or have occurred and be continuingremedies); and and
(jm) the security interests and liens set forth on Schedule 8.4 to the Information Certificate;
(n) the security interests and liens of the Noteholder Collateral Agent in the Collateral pursuant to the Black Canyon Security Agreement to secure (i) the Indebtedness of Operating and the Black Canyon Guarantors under the Black Canyon Documents to the extent such Indebtedness is permitted under Section 9.9(r) hereof and (ii) the Indebtedness of Intermediate evidenced by the remaining portion of the 16% Senior Discount Notes on an equal and ratable basis to the extent such Indebtedness is permitted under Section 9.9(q) hereof, which security interests and liens of the Noteholder Collateral Agent are and shall at all times be junior and subordinate to the security interests and liens of Agent pursuant to the Black Canyon Intercreditor Agreement;
(o) the security interests and liens of the financial institution or institutions providing the Indebtedness permitted pursuant to Section 9.9(t) hereof on the Intellectual Property and all other Collateral, in each case to secure the Indebtedness of Borrowers and Guarantors permitted under Section 9.9(t) hereof, which security interests and liens of such financial institution or institutions shall at all times be subject to an intercreditor agreement on terms and conditions reasonably acceptable to Agent, including a subordinate and junior lien of such financial institution or institutions as to all Collateral (other than Intellectual Property) and the priority of the security interests and liens of such financial institution or institutions as to the Intellectual Property and the right of Agent to use the Intellectual Property to realize on the Collateral.
Appears in 1 contract
Encumbrances. Each Borrower and each Aftermarket Entity 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 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 Aftermarket Entity 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, Aftermarket Entity'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, Aftermarket Entity 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, Aftermarket Entity 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 Real Estate not to exceed $15,000,000 2,000,000.00 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower Borrowers or Aftermarket Entities other than the Equipment or real estate Real Estate 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 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 any Aftermarket Entity 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 such Aftermarket Entity 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 any Aftermarket Entity 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 such Aftermarket Entity 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 any Aftermarket Entity located on the premises of such Borrower or such Aftermarket Entity (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 such Aftermarket Entity 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 ;
(j) the security interests and liens set forth on Schedule 8.4 to the Information Certificate;
(k) the security interests in and/or liens on cash collateral of Borrowers securing the Indebtedness under the Hedge Agreements permitted under Section 9.9(h) hereof provided that
(i) such secured Indebtedness does not exceed $250,000 at any time, (ii) no Events of Default have occurred and are then continuing when such liens are granted, (iii) such security interests and/or liens do not attach to any other Collateral and (iv) availability exists under the Borrowing Base after giving effect to the delivery of such cash collateral by Borrowers as security for such Indebtedness; and
(l) the first mortgages securing the Indebtedness permitted under Section 9.9(j) hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Proliance International, 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 including, without limitation, any Collateral, except: :
(a) the liens and security interests and liens of Collateral Lenders' Agent for itself as agent and for 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; books in accordance with GAAP;
(c) non-consensual statutory liens (other than liens pursuant to ERISA or environmental laws or 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 for a period of more than thirty (30) days, 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 under clauses (i) and (ii), 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 in accordance with GAAP;
(d) liens on property, other than any Collateral, incurred in the ordinary course of business in respect of Hedging Obligations;
(e) liens on property, other than any Collateral, securing surety or appeal bonds, performance bonds, insurance obligations, or other obligations of a like nature incurred in the ordinary course of business;
(f) liens on property, other than any Collateral, arising by reason of any judgment, decree or order of any court with respect to which such Borrower is then in good faith prosecuting an appeal or other proceedings for review, the existence of which judgment, order or decree is not an Event of Default under this Agreement;
(g) encumbrances on or with respect to real property consisting of zoning restrictions, survey exceptions, utility easements, access licenses, covenants and other rights of way, easements of ingress or egress over real property of a Borrower or restrictions affecting of record on the use of real property which property, minor defects in title to real property, mechanics' liens and vendors' liens on real property, in each case to the extent the same 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 and do not impair the value of any Collateral or the real rights of Lenders' Agent or Lenders therein or thereto;
(h) liens upon, or deposits of, property which may be subject thereto; other than any Collateral, made in connection with or to secure the performance of tenders, bids, and government contracts and leases and subleases;
(ei) pledges or deposits of property, other than any Collateral, under worker's compensation, unemployment or other social security legislation;
(j) purchase money security interests in Equipment of such Borrower (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding estate, 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 such Borrower 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; ;
(fk) security interests and liens securing Indebtedness permitted pursuant to Section 9.9(h) hereof or rights securing any extension, renewal or replacement of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacks; (g) deposits of cash with such Indebtedness to 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 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(g9.9(k) 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 (jl) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
Appears in 1 contract
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 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 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) security deposits in the ordinary course of its business;
(d) 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 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 such 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 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; 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 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower The Borrowers shall not, 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 kind or character upon any asset of its assets the Borrowers, whether owned at the date hereof or properties, including the Collateral, except: hereafter acquired except (“Permitted Liens”):
(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 their business or the ownership of their 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 their property or assets or materially impair the use thereof in the operation of their business;
(c) Liens arising out of judgments or awards against a 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 on its books; secured a stay of execution pending such appeal or proceedings for review;
(cd) non-consensual statutory liens (other than liens securing the payment of taxes) Liens arising in the ordinary course of business (such as (1) Liens of warehousemen, mechanics and materialsmen and (2) other similar Liens imposed by law, pledges or deposits to secure obligations under worker’s compensation laws or similar legislation or in connection with any surety bonds, bid bonds, performance bonds and similar obligations), so long as such Liens do not have a Material Adverse Effect on a Borrower’s ;
(e) Easements, rights of way, restrictions, minor defects or such Subsidiary’s irregularities in title and other similar Liens not interfering in any material respect with the ordinary conduct of business of any Borrower;
(f) good faith deposits in connection with lending contracts or leases to the extent: which a Borrower is a party;
(g) deposits to secure public or statutory obligations of a Borrower;
(h) Liens securing obligations permitted under Sections 8.1(e), and/or 8.1(g);
(i) such liens secure Indebtedness Liens granted to the Bank hereunder;
(j) bankers’ liens, rights of set off or similar rights as to accounts maintained with a financial institution which is do not overdue violate the Bank’s status as Borrowers’ Primary bank;
(k) Liens set forth in Schedule 7.6 (but only remaining in effect to the extent set forth in Section 7.6(c) and Section 7.20), and the replacement, extension or (ii) such liens secure Indebtedness relating renewal of any Lien permitted to claims remain in effect upon or liabilities which are fully insured and being defended at in the sole cost and expense and at the sole risk same property subject thereto arising out of the insurer extension, renewal or being contested replacement of the Indebtedness secured thereby (without increase in good faith by appropriate proceedings diligently pursued the amount thereof);
(l) licenses, leases or subleases granted to other Persons if 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, extent such licenses, covenants leases and other restrictions affecting the use of real property which subleases do not interfere in any material respect with the use business of such real property any Borrower and does not diminish the value of, or ordinary conduct impair any right of the business Bank in or to any Collateral;
(m) Liens incurred in connection with any transfer of Borrower an interest in Accounts or such Subsidiary related assets as presently conducted thereon or materially impair part of a Permitted Factoring Transaction;
(n) Liens consisting of cash collateral and related deposit accounts for the purpose of securing outstanding letters of credit permitted under Section 8.1(l); and
(o) additional Liens, as long as 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, Liens and the indebtedness Debt 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; five million dollars (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 Certificate5,000,000.00).
Appears in 1 contract
Samples: Loan and Security Agreement (FreightCar America, 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 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
Samples: Loan and Security Agreement (Reunion Industries Inc)
Encumbrances. Borrower shall not, and each Obligor 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 Liens of Agents and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(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 anytime outstanding for Borrower and Obligors so long as such security interests and mortgages do not apply to any assets or 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 requires the discharge thereof prior to the advance of the initial Revolving Loans pursuant to this Agreement);
(g) Liens to secure Permitted Inter-Company Debt; and
(h) Liens granted by a Permitted 3rd Party Debt Obligor to secure its Permitted 3rd Party Debt or Permitted 3rd Party Debt Guarantee (and US Collateral Agent and Lender agree to enter into a Permitted 3rd Party Debt Subordination Agreement with respect thereto).
Appears in 1 contract
Encumbrances. Borrower shall not, and Borrowers 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 their assets or properties, including including, without limitation, the Collateral, except: :
(a) the liens and security interests of Agent and liens of Collateral Agent for itself and the benefit of Lenders; ;
(b) liens securing the payment of taxes, 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 or such Subsidiary, as the case may be Borrowers and with respect to which adequate reserves have been set aside on its their 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 Borrowers' 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 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 their 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 Borrowers 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 Borrowers other than the Equipment or real estate so acquired, acquired and the indebtedness secured thereby does not exceed the cost of the Equipment any additions or real estate so acquiredaccessions thereto, 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 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 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 thereto; (e) purchase money security interests in Equipment (including Capital Leasescapital leases) and purchase money mortgages on real estate not to exceed $15,000,000 450,000 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. No Borrower shall, nor shall not, and shall not it permit any Subsidiary of its Consolidated 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) in existence on the security interests date hereof and liens of Collateral Agent for itself and set forth in Schedule 9.6 or as reflected in the benefit of LendersCompany's consolidated financial statements dated June 30, 1997; (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 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 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 3,000,000 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 CertificateProject Financing.
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 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
Samples: 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. 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 and provided no enforcement action has been commenced or such Subsidiary, as the case may be and taken against any Collateral with respect to which adequate reserves have been set aside on its booksthereto; (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 booksproceedings; (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 2,500,000 of obligations (including capitalized lease obligations) secured thereby incurred in any fiscal year of Borrower (and including for the aggregate at purposes of such limitation, the obligations of US Borrower's and its subsidiaries secured by any time outstanding so long as purchase money security interests in Equipment (including capitalized leases) and purchase money mortgages in real estate incurred during such fiscal year), provided, that, 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, 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, rights-of-way, 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 appraised value of the real property which may be subject theretothereto and the liens permitted in the Charge to be registered in favour of Lender in respect of the property municipally known as 0000 Xxxxxxxx Xxxxx, Mississauga, Ontario; (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; (f) liens the security interests, mortgages, pledges, liens, charges or rights of setoffs or credit balances of Borrower with Credit Card Processors as a result of fees and chargebacksother encumbrances set forth on Schedule 8.4 hereto; (g) deposits liens securing performance of cash with the owner or lessor of retail store locations leased bids, contracts, statutory obligations, surety, performance and operated by Borrower appeal bonds and other like obligations incurred 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; business, (h) liens on assets pledges or deposits made in the ordinary course of Borrower to secure indebtedness business in connection with workers' compensation, unemployment insurance and other types of Borrower permitted under Section 9.9(d) below, provided, that, such liens shall be junior social security legislation; 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 liens securing indebtedness of Borrower permitted under Section 9.9(g) hereof; provided, that, (i) the aggregate amount so pledged a person acquired by or deposited, together amalgamated with the amount of all Letter of Credit Accommodations issued Borrower or liens securing indebtedness incurred in connection with any Hedging Agreementsan acquisition, shall provided in all such cases that such acquisition or amalgamation, as the case may be, is not prohibited hereunder and provided further that such liens were in the aggregate exceed $2,500,000, (ii) as of each of the thirty (30) days immediately preceding existence prior to the date of such pledge or deposit acquisition, and after giving effect thereto, Excess Availability shall were not be less incurred in anticipation thereof and do not extend to assets other than $4,000,000, those acquired. (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 all 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 foregoing being sometimes collectively referred to the Information Certificateherein as "PERMITTED ENCUMBRANCES").
Appears in 1 contract
Samples: Loan Agreement (Imax Corp)
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. The Borrower shall not, and shall will not permit any Subsidiary togrant, create, incur, assume, or suffer to exist and will not permit any of its Subsidiaries to grant, incur, assume or permit suffer to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on kind upon, or any security interest (collectively, "Liens") in any of its assets or propertiestheir assets, including whether now owned or hereafter acquired, except for the following (collectively, "Permitted Encumbrances") which Permitted Encumbrances, to the extent encumbering Collateral, exceptshall be subordinate to the Lien in favor of the Agent granted hereunder or under the Loan Documents except to the extent such Permitted Encumbrances may be granted statutory priority irrespective of order of perfection or are otherwise identified as senior or pari passu on Exhibit 6.4 attached hereto and made a part hereof: (A) Liens for taxes (1) not yet delinquent or (2) the nonpayment of which in the aggregate would not reasonably be expected to have a Material Adverse Effect, provided that no taxing authority has begun proceedings to enforce or execute on such Lien against Collateral having a fair market value in excess of $100,000.00 in the aggregate; or (3) being contested in good faith in appropriate proceedings provided that (a) such proceedings have the security interests and liens effect of Collateral Agent for itself and staying any right of the benefit of Lenders; taxing authority to enforce or execute against such lien, (b) liens securing the Borrower or its Subsidiary, as the case may be, prosecutes such action diligently and without delay, (c) the Borrower or its Subsidiary, as the case may be, creates adequate reserves for the payment of all such contested taxes, either not yet overdue and (d) the Borrower or the validity Subsidiary, as the case may be, pays prior to delinquency any portion of such taxes not being contested in good faith; (B) pledges, deposits or other Liens in connection with the Borrower's statutory obligations respecting worker's compensation, unemployment insurance, or other social security obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements respecting such statutory obligations); (C) mechanic's, workman's, materialman's, landlorx'x, xxxxier's, warehouseman's, laborer's or other similar Liens arising in the ordinary course of business with respect to obligations that are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings diligently pursued conducted and available to Borrower or such Subsidiary, as the in either case may be and with respect to which provided that adequate reserves have been set aside on its booksestablished in accordance with GAAP; (cD) 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, licensesrights-of-way, covenants zoning and other restrictions affecting and other similar encumbrances on the use of, and minor irregularities of title affecting, 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 the Borrowers and do not materially impair affect the value of such property; (E) Liens in respect of judgments or awards for which appeals or proceedings for review are being prosecuted diligently, in good faith and without delay and in respect of which a stay of execution upon any such appeal or proceeding for review shall have been secured or the real property period within which such proceedings may be subject theretoinitiated shall not have expired; (eF) Liens created in favor of manufacturers and/or manufacturers' representatives or agents to secure the purchase money security interests price of fixed assets acquired from such secured party by the Borrower or any of its Subsidiaries (or, to the extent assigned to and assumed by the Borrower or any of its Subsidiaries in Equipment (including Capital Leasesconnection with a Permitted Acquisition, acquired from such secured party by the assignor) and purchase money mortgages on real estate not to exceed $15,000,000 in incurred at the aggregate at any time outstanding of acquisition or within one hundred eighty (180) days thereafter, so long as each 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 Lien shall not exceed the cost purchase price of the Equipment asset or real estate assets so acquired, acquired and shall at all times be confined solely to the asset or assets so acquired and provided that at no time shall such Liens collectively secure more than $4,000,000.00 of Indebtedness; (G) Liens in favor of the Agent for the benefit of the Lender Group and the indebtedness secured thereby does not exceed the cost Lien granted to each Lender pursuant to Section 9.3 hereof and Section 8.6 of the Equipment or real estate so acquired, as the case may beGuarantee; (fH) liens or rights Liens granted to Mellon to secure the Borrower's and its Subsidiaries' guaranty obligation with respect to the ESOT Loan, the priority of setoffs or credit balances such Liens to be pari passu with the priority of Borrower with Credit Card Processors as a result of fees Liens referred to in clause (G) above and chargebacksotherwise to be governed by the Intercreditor Agreement; (gI) deposits Liens to secure the performance of cash with the owner or lessor bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds, judgment and like bonds, replevin and similar bonds and other obligations of retail store locations leased and operated by Borrower a like nature incurred in the ordinary course of business, (J) Liens in existence on the Closing Date and listed in Exhibit 6.4, provided that no such Lien is spread to cover any additional property after the Closing Date and that the amount of Indebtedness secured thereby is not increased; (K) Liens on patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, technology, know-how and processes to the extent such Liens arise from the granting of licenses to use such patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, technology, know-how and processes to any Person in the ordinary course of business of the Borrower to secure the performance by Borrower of and its obligations under the terms of the lease for such premisesSubsidiaries; and (hL) liens on assets of Borrower to secure indebtedness of Borrower Liens securing Contingent Liabilities permitted under Section 9.9(d6.7(F) below, provided, that, such liens shall be junior and subordinate not exceeding (as to the liens of Collateral Agent on terms Borrower and conditions acceptable to Collateral Agent; (iits Subsidiaries) 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) $1,000,000.00 in the aggregate amount so pledged at any time outstanding. The Borrower will not enter into or depositedpermit any of its Subsidiaries to enter into any other agreement which prohibits or restricts the ability of such Person to create, together with the amount incur, assume, grant, or suffer to exist any Liens upon, or any security interest in, any of all Letter of Credit Accommodations issued in connection with any Hedging Agreementsits assets, shall not whether now owned or hereafter acquired, except (1) as set forth in the aggregate exceed $2,500,000, ESOT Assignment Documents and (ii2) as of each provided in any agreement respecting a Lien permitted pursuant to clause (F) above provided that such prohibition or limitation (a) is effective only with respect to the assets so financed or acquired and (b) is ineffective against any Lien created hereby in favor 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 CertificateAgent.
Appears in 1 contract
Samples: Loan Agreement (Edo Corp)
Encumbrances. Borrower shall notnot itself, and nor shall not it cause, permit or allow any Subsidiary to, create, assume, incur, assume, suffer or permit to exist any security interest, mortgage, pledge, liendeed of trust, encumbrance, security interest, assignment, lien or charge of any kind or character upon or with respect to any of their real or personal property, including, without limitation, any capital stock owned by Borrower or the Bank whether owned at the date hereof or hereafter acquired, excepting only liens existing on the date hereof as shown on the Borrower Financial Statements; provided, however, that the foregoing shall neither restrict nor operate to prevent:
5.1.3.1 liens arising by statute in connection with worker’s compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other encumbrance 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 any nature whatsoever on any business, provided in each case that the obligation is not 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 its assets the matter under contest and adequate reserves have been established therefor;
5.1.3.2 mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or properties, including other similar liens arising in the Collateral, except: (a) the security interests and liens ordinary course of Collateral Agent for itself and the benefit of Lenders; (b) liens securing the payment of taxes, either 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 which prevent enforcement of the matter under contest;
5.1.3.3 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;
5.1.3.4 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 Bank incurred in the ordinary course of Borrower’s business and not in connection with the borrowing of money, and liens securing Permitted Bank Indebtedness in the ordinary course of business;
5.1.3.5 liens on property of Borrower or any Subsidiary created solely for the purpose of securing Indebtedness permitted by Section 5.1.2.5, 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;
5.1.3.6 liens to the commencement of foreclosure secure public funds or other pledges of funds required by law to secure deposits;
5.1.3.7 repurchase agreements, reverse repurchase agreements and other similar proceedings transactions entered into by Bank in the ordinary course of its banking or trust business; and
5.1.3.8 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 Certificate.Subsidiaries..
Appears in 1 contract
Samples: Loan and Subordinated Debenture Purchase Agreement (Old Second Bancorp 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 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 Lenders; (b) liens 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 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 Liens (other than liens Liens securing the payment of taxesTaxes) arising in the ordinary course of such Borrower’s or such Subsidiary’s 's 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 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 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 Leasescapital leases) and purchase money mortgages on real estate Real Property, in each case entered into from and after the date hereof 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 such Borrower other than the Equipment or real estate Real Property 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 Real Property so acquired, as the case may be; (f) liens or rights of setoffs or credit balances of Borrower Liens securing any Offshore Equipment that has been released by Collateral Agent in connection with Credit Card Processors as a result of fees and chargebacksPermitted Property Transfer, to the extent that such Lien is limited to such released Offshore Equipment only; (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 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 Equipment purchased 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 Permitted Affiliate Investments 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 continuingPermitted Supplemental Investments; and (jh) the security interests and liens Liens set forth on Schedule 8.4 to the Information Certificatehereto.
Appears in 1 contract
Encumbrances. Borrower shall not, and each Obligor 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 Liens of Agents and liens of Collateral Agent for itself and the benefit of Lenders; Lender;
(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 anytime outstanding for Borrower and Obligors so long as such security interests and mortgages do not apply to any assets or 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 requires the discharge thereof prior to the advance of the initial Revolving Loans pursuant to this Agreement); and
(g) Liens to secure Permitted Inter-Company Debt.
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; Agent, Issuing Bank, Lenders and Wachovia (and any Affiliate of Wachovia) as the provider of any Bank Products and 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 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 taxestaxes to the extent not permitted in subsection (b) above) 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 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 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 or investment securities cash by any Borrower 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) 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 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 ;
(j) liens in existence immediately prior to the date hereof that are to be satisfied in full and released as a result of the application of Borrowers' cash per the Disbursement Letter or the proceeds of Revolving Loans to be made hereunder and the security interests and liens set forth on Schedule 8.4 to in the Information Certificate;
(k) liens securing Indebtedness of a Subsidiary of any Borrower to such Borrower;
(l) liens arising by virtue of the rendition, entry or issuance against such Borrower or any of its Subsidiaries, or any property of such Borrower or any of its Subsidiaries, of any judgment, writ, order, or decree for so long as each such Lien (a) is in existence for less than 20 consecutive days after it first arises or is being properly contested with adequate reserves being made therefor and (b) is at all times junior in priority to any liens in favor of Agent;
(m) normal and customary rights of setoff upon deposits of cash in favor of banks and other depository institutions, but only to the extent expressly permitted by a Deposit Account Control Agreement among Borrowers, such bank and Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Sed International Holdings Inc)
Encumbrances. A 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 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 or proposed to be 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 Leases entered into after the date hereof), 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; 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 those securing the indebtedness to Seller referred to in Section 4.1(dd) hereof, which have been fully subordinated to the Information Certificateliens and security interests of Lender to Lender’s satisfaction.
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 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 Wexxx Xntercreditor 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 Wexxx Xntercreditor 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 150 Xxxxxx Xxxx, 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, 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 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 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 's or such Subsidiary’s 's business (including carriers', warehousemen's, materialmen's, landlord's and mechanics lien) 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 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 Equipment, exclusive of purchase money security interests in respect of Systems Expenditures described in Section 9.8(f) below (including Capital Leases) 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 secured thereby does not exceed the cost of the such Equipment or real estate so acquired, as the case may be; ;
(f) purchase money security interests in Equipment, software, services and costs relating solely to Borrower's point of sale systems and information systems (collectively, the "Systems Expenditures") purchased after the date hereof (including capital leases) with prior approval of Borrower's board of directors, not to exceed $10,000,000 in the aggregate at any time outstanding so long as such security interests do not apply to any property of Borrower other than assets related to Systems Expenditures (the "Systems Assets") and the indebtedness secured thereby does not exceed the cost of such Systems Assets so acquired;
(g) liens or rights of setoffs arising from operating leases and the precautionary UCC financing statements filed in respect thereof;
(h) 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; ;
(gi) deposits of cash with security interests and liens on the owner or lessor of retail store locations leased and operated by Borrower in Collateral 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 Investors permitted under Section 9.9(d) below, provided, that, such ; and
(j) security interests and liens shall be junior and subordinate on the Collateral to secure the liens Indebtedness of Collateral Agent on terms and conditions acceptable Borrower to Collateral AgentFranchise Noteholders permitted under Section 9.9(e) below; and
(ik) pledges and deposits of cash, Cash Equivalents or investment securities cash by Borrower 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 Borrower as of the date hereof;
(l) pledges and deposits of cash by Borrower 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), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practice of Borrowers 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, not secured solely by the cash deposit, 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 satisfactory to Administrative Agent and Lender; 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 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, 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 100 Xxxxxx Xxxx, 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, 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 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) any security interests and liens granted in favor of the Trustee under the Indenture (with such security interests and liens being subject to the Information CertificateAccess Agreement); and (h) any security interests and liens granted in favor of any person which are permitted or not otherwise prohibited under the Indenture provided that such liens shall not attach to any of the Collateral.
Appears in 1 contract
Samples: Loan and Security Agreement (Seven Seas Steamship Co Nv)
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, security interests and liens hypothecs of Collateral Agent for itself and the benefit of Lenders; ;
(b) 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 and with respect to which adequate reserves have been set aside on its books; books in accordance with GAAP;
(c) non-consensual statutory liens (other than liens securing the payment of taxesTaxes but including liens securing the claims or demands of materialmen, mechanics, carriers or warehousemen) arising in the ordinary course of Borrower’s or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness indebtedness or obligations which is are 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 (subject to customary deductions) or are 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; books 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 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 the Canadian Dollar Amount of $15,000,000 5,000,000 in the aggregate principal amount 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; be plus related interest, fees and expenses;
(f) liens or rights deposits made in the ordinary course of setoffs or credit balances business of Borrower in connection with Credit Card Processors payroll administration fees, worker's compensation, unemployment insurance or other types of social security benefits in each case consistent with the current practices of Borrower as a result of fees and chargebacks; the date hereof or applicable legal requirements;
(g) liens arising from operating leases of Borrower and precautionary lien filings in respect thereof for Equipment having a value not in excess of the Canadian Dollar Amount of $2,000,000 in aggregate;
(h) purchase money security interests on Inventory and Accounts in favour of a vendor of Inventory approved by Agent securing amounts owing to such vendor not exceeding the principal amount of $10,000,000 in aggregate (pursuant to security documents reasonably acceptable to Agent and provided to Agent at least seven (7) days in advance of execution) subject to the limitation that such a purchase money security interest will only be permitted on Accounts and Proceeds if such security interest is subordinated to the security interests of the Agent and Lenders in the manner satisfactory to Agent;
(i) cash deposits (including rights of set-off) made by Borrower in the ordinary course of business with its insurance carriers to secure Borrower's liability for premiums payable to Borrower's insurance carriers in an aggregate amount not exceeding the Canadian Dollar Amount of $1,000,000;
(j) cash deposits with the owner or lessor of retail store locations premises leased and operated by Borrower in the ordinary course of the its business of Borrower to secure the performance by Borrower of its obligations under the terms of the lease for such premises; premises in an aggregate amount not exceeding the Canadian Dollar Amount of $250,000;
(hk) cash deposits with utilities or other providers of services to Borrower made by Borrower in the ordinary course of business to secure performance by Borrower of its obligations to such utilities or service providers in an aggregate amount not exceeding the Canadian Dollar Amount of $100,000;
(l) liens on assets amounts not to exceed the Canadian Dollar Amount of Borrower $2,000,000 in aggregate in Borrower's deposit or investment accounts, investment securities and Proceeds thereof (other than accounts where Collateral is held) 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 Hedging Obligations permitted under Section 9.9(g);
(m) hereof; provided, that, cash deposits with banking or other financial institutions to secure Borrower's obligations to such banks or financial institutions in respect of cash management or payment processing arrangements entered into by Borrower and such bank or financial institution in the ordinary course of Borrower's business and in an amount not exceeding the Canadian Dollar Amount of $250,000 in the aggregate;
(in) the aggregate amount so pledged judgments and other similar liens on property other than Inventory or deposited, together with the amount of all Letter of Credit Accommodations issued Accounts arising in connection with court proceedings to the extent that such liens do not result in an Event of Default under Section 10.1(4);
(o) any Hedging Agreementsinterest or title of a lessor, shall sublessor, licensee or licensor under any personal property lease, sublease or license agreement with Borrower as lessee, sublessee, licensor or licensee permitted under this Agreement; and
(p) liens on accounts due from Borrower's vendors and suppliers (other than in respect of returned Inventory) incurred with the prior written consent of Agent and Lender, not to be unreasonably withheld, and securing Indebtedness in the aggregate exceed principal amount not exceeding $2,500,000, 10,000,000;
(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 (jq) the security interests and liens set forth on Schedule 8.4 hereto (except to the Information Certificateextent that Agent requires the discharge thereof prior to the advance of the initial Loans hereunder; and
(r) licenses, leases or subleases entered into by Borrower as permitted under Section 9.7 (b)(v) or (vi).
Appears in 1 contract
Samples: Loan Agreement (Merisel Inc /De/)
Encumbrances. No Borrower shall, and no Borrower shall not, and shall not permit any Domestic Subsidiary to, create, incur, assume, suffer or permit to exist any security interest, hypothec, 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 interests, hypothecs 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 Borrowers 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 such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness or other obligations of such Borrower 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 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 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 theretothereon; (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 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; mortgages on real 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 interests, hypothecs and liens set forth on Schedule 8.4 hereto, (h) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation, (i) any interest or title of a licensee or licensor under any license entered into by a Borrower in the ordinary course of business, (j) liens or hypothecs on property acquired after the date hereof (including liens on property of a Subsidiary acquired after the date hereof) securing Indebtedness permitted under Section 9.9 but only if such lien was not created in contemplation of such acquisition and is limited in scope to the Information Certificateproperty so acquired, (k) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, customer, appeal and performance bonds and other like obligations incurred in the ordinary course of business; (l) security interests, liens and hypothecs of Guess ?, Inc. in existence on the date hereof but only to the extent that such liens have subordinated in a manner satisfactory to the Lender in all respects to the security interests, hypothecs and liens granted by Borrowers to Lender; and (m) the security interests, hypothecs and liens in favour of GMAC Commercial Credit Corporation—Canada, such security interests, hypothecs and liens to be discharged forthwith after the initial Loan is made hereunder.
Appears in 1 contract
Encumbrances. Borrower shall not, and Borrowers 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 their 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; Secured Parties;
(b) liens securing the payment of taxes, 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 or such Subsidiary, as the case may be Borrowers and with respect to which adequate reserves have been set aside on its their 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 Borrowers’ 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 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 their 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 Borrowers 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 estate, and any time outstanding refinancings, modifications, extensions, renewals and replacements thereof, 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, acquired and the indebtedness secured thereby does not exceed the cost of the Equipment any additions or real estate so acquiredaccessions thereto or proceeds thereof, 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 to secure the performance of cash with the owner or lessor bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of retail store locations leased and operated by Borrower a like nature, in each case 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 premisesbusiness; and
(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, 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 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 and (g) the Licenses granted pursuant to the Information CertificateLicensor Agreements.
Appears in 1 contract
Encumbrances. Borrower shall not, Borrowers and NSC 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 their respective 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 Borrowers or such Subsidiary, as the case may be NSC 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 Borrowers' or such Subsidiary’s NSC's business to the extent: (i) such liens secure Indebtedness indebtedness which is not overdue or (ii) such liens secure Indebtedness 61 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 Borrowers or such SubsidiaryNSC, 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 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 Borrowers or such Subsidiary NSC 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 LeasesLeases entered into after the date hereof) and purchase money mortgages on real estate Real Property, 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 a Borrower or NSC other than the Equipment or real estate Real Property 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 Real 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 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; and (g) the security interests pursuant to the Information CertificateSecurity Pledge.
Appears in 1 contract
Samples: Loan and Security Agreement (Nutritional Sourcing Corp)
Encumbrances. Borrower shall not13.1 LWB expressly, unconditionally and irrevocably waives any right to any Encumbrance granted by law, or otherwise, and shall undertake not to permit or create or do any Subsidiary toact, create, incur, assume, suffer deed or permit to exist any security interest, mortgage, pledge, lien, charge thing which would or other encumbrance might result in the creation or assertion of any nature whatsoever Encumbrance on any part of the Owner's property (which for all purposes of this Contract shall mean the Vessel, the Hull, the Equipment, OFI, Parts and any other property of the Owner relating to or connected in some way with this Contract or the arrangements described herein or contemplated hereby).
13.2 LWB shall promptly and fully indemnify and hold harmless and defend the Owner and the Indemnified Parties from and against all liabilities for the payment of the amount of any Encumbrance claimed or asserted against or imposed on any property of the Owner by LWB, any Subcontractors, or any other third party whatsoever.
13.3 In the event that:
13.3.1 LWB has a PRIMA FACIE valid claim against the Owner; and
13.3.2 LWB has commenced arbitration proceedings in respect of such claim in accordance with the terms of this Contract (such commencement being the service by LWB of a notice referring the claim to arbitration and advising of the appointment of a first arbitrator); and
13.3.3 the Owner at any time wishes to remove any of its assets property from the Work Site (upon 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 before completion of the insurer or being contested Works), then the Owner shall be entitled to remove such property from the Work Site upon provision by the Owner of a guarantee issued by a first class bank in good faith by appropriate proceedings diligently pursued a form reasonably acceptable to LWB in an amount equivalent to LWB's claim (exclusive of interest and available to Borrower or such Subsidiarylegal costs), 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 less the value of any PRIMA FACIE valid counterclaims asserted by the real property which Owner (exclusive of interest and legal costs).
13.4 At any time when a payment is due to LWB under this Contract, and at all other reasonable times, the Owner may require LWB to provide a written statement satisfactory to the Owner showing what, if any, Encumbrance of any kind has been or is liable to be or may be subject thereto; (e) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages imposed 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 or asserted against any property of Borrower other than the Equipment or real estate so acquired, and the indebtedness secured thereby does not exceed the cost Owner located at any part of the Equipment Work Site.
13.5 If any Encumbrance of any kind is imposed on or real estate so acquired, and the indebtedness secured thereby does not exceed the cost asserted or claimed against any property of the Equipment Owner located at any part of the Work Site, LWB shall promptly notify the Owner and shall, not later than ten (10) Days thereafter, secure the discharge or real estate so acquiredrelease of such Encumbrance PROVIDED THAT if the Owner desires to contest any such Encumbrance and such discharge or release is not available under law during such contest (including, without limitation, through the filing of a bond or other security), LWB shall immediately take such steps as in the case opinion of the Owner shall prevent such Encumbrance from delaying or otherwise adversely affecting the execution of the Works and shall indemnify fully, hold harmless and defend the Owner and all other Indemnified Parties from and against all Losses which any of them may be; (f) liens sustain or rights of setoffs or credit balances of Borrower with Credit Card Processors incur as a result of fees and chargebacks; the imposition of any such Encumbrance.
13.6 Notwithstanding the provisions of Clause 13.5, the Owner may secure the removal of any such Encumbrance in which event LWB shall reimburse the Owner for its costs (gincluding legal fees) deposits of cash with the owner securing such discharge or lessor of retail store locations leased and operated release by Borrower deducting such sum from any payments due or to become due to LWB under this Contract save that if any such cost is in the ordinary course excess of the business amount of Borrower any such reimbursement by deduction, LWB shall pay the amount of such excess to the Owner promptly upon demand.
13.7 Notwithstanding the provisions of Clause 13.5, the Owner, without securing the discharge or release of any such Encumbrance, may nevertheless withhold from any payments due or to become due to LWB, unless and until such Encumbrance is discharged or released by LWB, a sum equal to the amount reasonably determined by the Owner to be required to secure the performance by Borrower discharge or release of its obligations under such Encumbrance (which amount shall include 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 estimated amount of all Letter of Credit Accommodations issued expenses which might be incurred in connection with any Hedging Agreementstherewith, 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 Certificateincluding legal fees).
Appears in 1 contract
Samples: Amendment and Restatement of a Contract (NCL CORP Ltd.)
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. 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
Samples: Loan and Security Agreement (Microtel International 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 or common law 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 in Equipment (including Capital Leasesand mortgages to secure Indebtedness permitted under Section 9.9(b) and purchase money mortgages on real estate not to exceed $15,000,000 in the aggregate at any time outstanding 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 acquired, acquired (and the indebtedness secured thereby does not exceed the cost proceeds thereof) and such security interests are granted within two hundred seventy (270) days of the date of such acquisition or completion of construction, remodeling 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 acquiredReal 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 and the precautionary UCC financing statement filings in respect thereof arising from (i) operating leases and (ii) equipment or other materials which are not owned by Borrower or any Guarantor but are 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;
(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) 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 lien is imposed within the aggregate amount so pledged or depositedperiod specified in Section 10.1(d) hereof in effect and (iv) Agent may establish a Reserve with respect thereto;
(m) the security interests and liens upon the Frigidaire Consignment Collateral in favor of Frigidaire to secure Indebtedness owing to Frigidaire under the Frigidaire Consignment Agreement as permitted in Section 9.9(i) hereof; provided, together that, such security interests and liens shall at all times be subject to the terms of the Frigidaire Intercreditor Agreement;
(n) the liens of customs brokers on Inventory of Borrower incurred in the ordinary course of business in the connection with the amount importation of all Letter Inventory; provided, that, such Inventory is not Eligible Inventory;
(o) the security interests in and liens upon the Collateral in favor of Credit Accommodations issued Term Loan Agent to secure the Indebtedness and other liabilities of Borrower and Guarantors owing to Term Loan Agent, Term Loan Lenders and Term Loan Bank Product Providers (other than Term Loan Bank Product Providers which are Lenders hereunder) to the extent such Indebtedness is permitted under Sections 9.9(h) and (l) hereof; provided, that, such security interests and liens shall be subject to the terms of the Term Loan Intercreditor Agreement;
(p) the security interests and liens upon the portion of Collateral that secures any Indebtedness and other liabilities owing in connection with any Hedging Agreementsfloor plan financing arrangements to the extent permitted under Section 9.23 hereof; provided, that, such security interests and liens shall not in at all times be subject to the aggregate exceed $2,500,000, (ii) as of each terms of the thirty intercreditor agreement referred to in Section 9.23 hereof;
(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 (jq) the security interests and liens set forth on Schedule 8.4 to the Information Certificate; and
(r) other liens securing obligations of Borrower and Guarantors permitted hereunder in an aggregate amount not to exceed $5,000,000 at any time.
Appears in 1 contract
Encumbrances. (a) 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: :
(ai) 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 the Affiliate of Agent or other Person that is party to a Hedge Agreement to the extent provided for herein and subject to the terms hereof;
(bii) 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; ;
(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 (other than the payment by such Borrower of the deductible with respect to such claim, which deductible/self insurance retention shall not exceed $250,000) and being defended at the sole cost and expense and at the sole risk of the insurer or which are 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 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; ;
(ev) purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $15,000,000 Real 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 Real 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 Real Property so acquired, as the case may be; ;
(fvi) 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; ;
(gvii) 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 or Guarantor as of the date hereof;
(viii) 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 not have any rights in or to, or other interest in, any of the Collateral;
(hix) liens arising from (A) operating leases and the precautionary UCC financing statement filings in respect thereof and (B) 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;
(x) judgments and other similar liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (A) such liens are being contested in good faith and by appropriate proceedings diligently pursued, (B) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, and (C) a stay of enforcement of any such liens is in effect;
(xi) liens and security interests on assets of Borrower Borrowers and Guarantors to secure indebtedness Indebtedness of Borrower Borrowers and Guarantors permitted under Section 9.9(d9.9(k) belowhereof, provided, that, such assets do not constitute Collateral;
(xii) liens shall be junior and subordinate security interests to the liens of Collateral Agent on terms and conditions acceptable to Collateral Agent; secure Indebtedness permitted under Section 9.9(p);
(ixiii) pledges and deposits of cash, Cash Equivalents cash by any Borrower or investment securities by Borrower Guarantor to secure indebtedness payment of Borrower permitted under the Existing Letter of Credit referred to in Section 9.9(g9.9(n) hereof; and
(xiv) liens and security interests on assets of Borrowers and Guarantors in connection with Synthetic Lease Facility Agreements, provided, that, liens on the Collateral shall only be permitted so long as Lenders (ior their Affiliates, as provided in Section 14.7(a) hereof) are the aggregate amount so pledged or deposited, together with sole holders of the amount of all Letter of Credit Accommodations issued in connection with any Hedging Agreements, shall not Tranche A Notes (as such term is defined in the aggregate exceed $2,500,000Synthetic Lease Facility Agreements);
(xv) liens and security interests on equipment, real property, fixtures or goods (iibut excluding Inventory) of Pep Boys, pursuant to, and as of each more particularly described in, the Equipment Term Loan Documents;
(xvi) liens and security interests on Accounts, Inventory and certain other personal property of the thirty (30) days immediately preceding Borrowers and Guarantors pursuant to, and as more particularly described in, the date of such pledge or deposit PNC Credit Card Documents, 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 subject 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 terms of the date of such pledge or deposit Intercreditor Agreement between PNC Bank, National Association and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingAgent; and and
(jxvii) the security interests and liens set forth on Schedule 8.4 to the Information Certificate.
(b) Notwithstanding anything to the contrary set forth in Sections 9.8(a)(i) through (xvii) above, such liens shall only be permitted (i) to the extent that such liens are permitted pursuant to Section 1004(a) of the 1998 Senior Note Indenture (as in effect on the date hereof), or if such 1998 Senior Note Indenture is not in effect, then the equivalent provision in any other Pep Boys Indenture, then in effect or (ii) to the extent such liens are not permitted under Section 1004(a) of the 1998 Senior Note Indenture, then only if the Indebtedness that such liens secure is (A) Exempted Debt, and (B) after giving effect to the incurrence of such Indebtedness and the lien securing such Indebtedness, the aggregate amount of outstanding Exempted Debt secured by such liens does not exceed the Exempted Debt Limit.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Encumbrances. No Borrower shall, and no Borrower shall not, and shall not permit any Domestic 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 Lender and the benefit of Lenderssecurity interests and liens granted pursuant to the Canadian Guarantee; (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 Borrowers 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 such Borrower’s 's or such Subsidiary’s 's business to the extent: (i) such liens secure Indebtedness or other obligations of such Borrower 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 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 theretothereon; (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 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; mortgages on real 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 or deposits in connection with workers' compensation, unemployment insurance and other social security legislation, (i) any interest or title of a licensee or licensor under any license entered into by a Borrower in the ordinary course of business, (j) liens on property acquired after the date hereof (including liens on property of a Subsidiary acquired after the date hereof) securing Indebtedness permitted under Section 9.9 but only if such lien was not created in contemplation of such acquisition and is limited in scope to the Information Certificateproperty so acquired, (k) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, customer, appeal and performance bonds and other like obligations incurred in the ordinary course of business and (1) security interests and liens on assets of a SPE in connection with a Securitization.
Appears in 1 contract
