Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, 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 any indebtedness of any Person other than (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following ("Permitted Liens"):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; [Intentionally Omitted];
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due be required by Section 6.01(c) hereof;
(iv) Liens created by operation of law or thereafter payable without penaltyleases (other than Liens created under Environmental Laws), or Liens of carrierssuch as landlords' liens, warehousemenmaterialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 6.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money, or (B) materially impair the value of such property or materially impair the use thereof by the Borrower or any of its Subsidiaries in full the normal conduct of such Person's business;
(subject vii) purchase money liens on or purchase money security interests in equipment acquired or held in the ordinary course of business of the Borrower and its Subsidiaries securing Indebtedness incurred at the time of, or within 20 days after, the acquisition of such equipment, provided that the aggregate principal amount of such Indebtedness in any fiscal year of the Borrower shall not exceed $5,000,000;
(viii) Liens securing Capitalized Leases permitted by Section 6.02(g);
(ix) Liens securing Transponder Indebtedness permitted by Section 6.02(b)(ii), provided that such Liens shall be limited to a customary deductiblethe Transponder Collateral; and
(x) by insuranceLiens securing Other Senior Indebtedness.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (i"Permitted Liens"):
(a) Liens in favor of Bank; created pursuant to the Loan Documents;
(iib) Liens reflected existing on SCHEDULE 6.2(C) the date hereof, as set forth in Schedule 8.01 hereto; ;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (ivc) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law other than Environmental Liens, or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar liens, materialmen and landlords incurred arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than thirty (30) days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such e) deposits, pledges or Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vother than Liens arising under ERISA) Liens securing (1) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) restrictions on surety or appeal bonds; the use of real property and minor irregularities in the title thereto which do not (vi1) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or secure obligations for the payment of which is covered money or (2) materially impair the value of such property or its use by the Borrowers in full the normal conduct of such Person's business;
(subject g) purchase money Liens on or purchase money security interests in equipment or real property acquired or held in the ordinary course of its business securing Indebtedness, provided that the Liens do not extend to a customary deductible) by insurance.any Collateral and the holders of such Liens shall expressly provide that the Administrative Agent and the Lenders shall at all times have access to the premises in order to acquire, hold, improve, repair, maintain, sell or otherwise dispose of Collateral;
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries subsidiaries to create or suffer to exist, any Lien lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, upon or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries subsidiaries to assign, any right to receive income, in each case to secure any indebtedness Debt of any Person Person, other than the following liens (“Permitted Liens”):
(i) Liens those described on Schedule 5.02(a) hereto and renewals and extensions on the same or substantially the same terms and conditions and at no increase in favor of Bank; the debt or obligation;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; liens or security interests which are subject to an intercreditor agreement in form and substance acceptable to Agent in Agent's sole discretion;
(iii) purchase money Liens upon the liens or in any personal property acquired or held by Borrower or any Subsidiary in security interests of the ordinary course Deed of business to secure Trust and the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and Security Agreement;
(iv) Liens mechanics' and materialmen's liens for immaterial sums which are either (x) not yet due and payable or (y) being contested in good faith by appropriate proceedings which serve to stay the foreclosure of such liens and as to which appropriate reserves have been established;
(v) liens (other than liens relating to environmental liabilities or ERISA) for taxes, assessments assessments, or other governmental charges that are not more than 30 days overdue or, if the execution thereof is stayed, which are being contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves have been established;
(vi) liens of warehousemen, carriers, landlords, feeders, or levies other similar statutory or common law liens securing obligations that are not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords are incurred in the ordinary course of business for sums not overdueor, or any such Liens if the execution thereof is stayed, which are being diligently contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books generally accepted accounting principles;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights vii) liens resulting from good faith deposits to secure payments of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensationcompensation unemployment insurance, unemployment insurance or other forms of governmental insurance or benefits, social security programs or to secure the performance of tenders, leases, statutory obligations, leases surety, customs and appeal bonds, bids or contracts (other than for borrowed moneypayment of Debt);
(viii) entered into any attachment or judgment lien not constituting an Event of Default;
(ix) liens arising from filing UCC financing statements regarding leases (including Capital Leases) not prohibited by this Agreement;
(x) customary offset rights of brokers and deposit banks arising under the terms of securities account agreements and deposit agreements; and
(xi) any real estate easements and easements, covenants and encumbrances that customarily do not affect the marketable title to real estate or materially impair its use or are disclosed in the ordinary course of business or Title Commitment and not objected to secured obligations on surety or appeal bondsby Agent; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.or
Appears in 1 contract
Samples: Construction and Term Loan Agreement (Show Me Ethanol, LLC)
Liens, Etc. Create Create, assume or suffer to existexist any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance, or permit any other type of its Subsidiaries to create or suffer to existpreferential arrangement (each of the foregoing, any Lien a “Lien”), upon or with respect to the properties or rights of any Borrower (but excluding, in any event, the property and rights of its propertiesany Regulated Subsidiary), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign as collateral any right to receive income, in each case services or property; provided, however, that the following shall be permitted to secure any indebtedness of any Person other than exist:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges not delinquent;
(ii) Liens for workmen’s compensation awards and similar obligations not delinquent;
(iii) Liens for taxes, assessments or levies not yet due governmental charges delinquent but the validity of which is being contested at the time in good faith by appropriate proceedings;
(iv) Liens existing upon any property acquired by such Person in the ordinary course of business (other than any such Lien created in contemplation of such acquisition);
(v) Liens arising in connection with sales or thereafter payable without penaltytransfers of, or financings secured by, accounts receivable or related contracts;
(vi) Liens of carriers, warehousemen, mechanics, materialmen and landlords securing obligations incurred in the ordinary course of business for sums not overduein respect of any interest rate, currency or commodity swap or hedge or any other interest rate, currency or commodity risk protection arrangement;
(vii) Liens in respect of property of (A) any Borrower existing on the date hereof and described in Schedule 5.02 or (B) WGP under the WGP Indenture, as modified, supplemented or replaced from time to time; provided that, after giving effect to any modification, supplement or replacement of the WGP Indenture, the collateral subject to the WGP Indenture does not extend to property of the Borrowers other than property of WGP; and provided further that the Net Cash Proceeds of any Debt issued under the WGP Indenture shall be applied to reduce the Commitments or prepay the Loans (as applicable) of WGP pursuant to Section 2.11;
(viii) Liens in respect of property acquired or constructed by any Borrower after the Effective Date that are created at the time of or within 120 days after acquisition or completion of construction of such property to secure Debt assumed or incurred to finance all or any part of the purchase price or cost of construction of such property, provided that in any such case (A) no such Lien shall extend to or cover any other property of such Borrower and (B) the aggregate principal amount of Debt secured by all such Liens in respect of any such property shall not exceed the cost of such property and any improvements then being diligently financed;
(ix) extensions, renewals or replacements of any Liens permitted by clause (vii)(A) above (including successive extensions, renewals and replacements), provided in each case that the principal amount of Debt (or the maximum commitment therefore) secured by any such Lien is not increased and such Lien does not extend to or cover any property other than the property covered by such Lien on the date of such extension, renewal or replacement; and
(x) Liens created by or resulting from litigation or legal proceedings that are currently being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or not involve amounts that in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank)aggregate would exceed $10,000,000; and
(vxi) Liens incidental to the normal conduct of the business of any Borrower or any Subsidiary of such Borrower or the ownership of its property that are not incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms the incurrence of governmental insurance or benefits, or to secure performance of statutory obligations, leases Debt and contracts (other than for borrowed money) entered into that do not in the ordinary course aggregate materially impair the use of such property in the operation of the business or to secured obligations on surety or appeal bonds; of such Borrower and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed its Subsidiaries taken as a whole or the payment value of which is covered in full (subject to a customary deductible) by insurancesuch property for the purposes of such business.
Appears in 1 contract
Samples: 364 Day Bridge Term Loan Agreement (Uil Holdings Corp)
Liens, Etc. Create or suffer to exist, or permit any of its their respective Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its their respective Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (ithe "Permitted Liens"):
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the Closing Date and extensions and renewals thereof provided that such extensions and renewals do not change the principal, interest, or other financial terms or obligations thereof;
(c) Liens in favor of Bank; connection with any taxes, assessments, governmental charges, levies, or claims that are not yet due and payable or which any Borrower is contesting in good faith and by appropriate proceedings diligently conducted so long as reserves or other appropriate provisions as may be required by GAAP have been made therefor and so long as the failure to pay the same would not result in and could not reasonably be expected to result in a Material Adverse Effect;
(iid) Liens reflected on SCHEDULE 6.2(Ccreated by operation of Law other than Environmental Liens, such as materialmen's liens, mechanics' liens (not to exceed $50,000 in the aggregate) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary and other similar Liens, arising in the ordinary course of business to which secure the purchase price amounts not overdue for a period of such property more than sixty (60) days or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books bonded or with respect to which a stay of enforcement is in effect;
(but only if such e) deposits (including utility security deposits), pledges or Liens do not(other than Liens arising under ERISA), individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); securing (v1) Liens obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or and secure obligations which are not past due;
(f) Liens in favor of the Agent (on behalf of the CIT Lenders, the Note Holders and the PIK Trustee, subject to secured obligations the Intercreditor Agreement;
(g) purchase money Liens solely on surety or appeal bonds; and the asset being acquired by the Borrowers, provided that each such Lien does not exceed $3,000,000;
(vih) [Intentionally Omitted];
(i) judgment Liens in existence less than 30 days that do not constitute an Event of Default;
(j) existing Liens on assets acquired after the entry thereof or Closing Date;
(k) involuntary Liens in the case of the Inactive Guarantors;
(l) precautionary UCC filings in connection with property not constituting Collateral hereunder (e.g., leases of telecopier machines);
(m) an encumbrance of a landlord with respect to which execution has been stayed the interest of the Borrowers or Guarantors as a lessee or sublessee under a Lease but not including any liens or encumbrances arising out of any default thereunder; and
(n) Liens to secure any Indebtedness incurred to refinance any Indebtedness secured by any Lien referred to in the payment of which is covered in full foregoing clauses (subject to a customary deductiblea) by insurancethrough (m).
Appears in 1 contract
Samples: Secondary Revolving Credit Agreement (Planet Hollywood International Inc)
Liens, Etc. Create Create, incur or suffer to exist, or permit any of its Subsidiaries to create create, incur or suffer to exist, any Lien upon on or with respect to any of its properties, whether now owned or hereafter acquired, or assignupon any income or profits therefrom, or acquire or agree to acquire, or permit any of its Subsidiaries Subsidiary to assignacquire, any right to receive incomeproperty or assets upon conditional sales agreements or other title retention devices, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor for taxes and assessments or governmental charges or levies and Liens securing claims or demands of Bank; mechanics and materialmen, provided that payment thereof is not at the time required by Section 5.01(a) or (b);
(ii) Liens reflected on SCHEDULE 6.2(Cany Lien of or resulting from any judgment or award; provided that either (A) hereto; the amount secured thereby does not exceed $200,000,000 or (B) if the amount secured thereby does exceed $200,000,000, the time for the appeal or petition for rehearing of such judgment or award shall not have expired, or the Borrower or a Subsidiary shall in good faith be prosecuting an appeal or proceeding for a review thereof, and execution of such judgment or award shall be stayed pending such appeal or proceeding for review;
(iii) purchase money Liens upon or in any personal property acquired or held incidental to the conduct of business conducted by the Borrower or any Subsidiary and its Subsidiaries in the ordinary course of business to secure or the purchase price ownership of properties and assets owned by the Borrower and its Subsidiaries (including (x) Liens in connection with worker’s compensation, unemployment insurance and other like laws, (y) warehousemen’s and attorneys’ liens and statutory landlords’ liens and (z) Liens consisting of any right of offset, or statutory or consensual banker’s lien, on bank deposits or securities accounts maintained in the ordinary course of business so long as such property bank deposits or to secure purchase money financing incurred solely securities accounts are not established or maintained for the purpose of financing providing such right of offset or banker’s lien) and Liens to secure the acquisition performance of rights in bids, tenders or use of such property; and (iv) Liens for taxestrade contracts, assessments or to secure statutory obligations, surety or appeal bonds or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords like general nature incurred in the ordinary course of business for sums of the Borrower and its Subsidiaries and not in connection with the borrowing of money, provided in each case, the obligation secured is not overdue or, if overdue, or any such Liens is being diligently contested in good faith by appropriate proceedings actions or proceedings;
(iv) survey exceptions or encumbrances, encroachments, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, zoning restrictions, declarations of covenants, conditions and restrictions, other title exceptions or other restrictions as to the use of real properties, which are necessary or appropriate in the good faith judgment of the Borrower for which adequate reserves in accordance with GAAP shall have been set aside on the conduct of the business of the Borrower and its books (but only if such Liens do notSubsidiaries and which, individually or in the aggregate, result do not in any event materially impair their use in the operation of the business of the Borrower or of the Borrower and its Subsidiaries taken as a Materially Adverse Change or materially adversely affect the rights of Bank); whole;
(v) Liens incurred securing Indebtedness of a Subsidiary to the Borrower or to another Subsidiary;
(vi) Liens existing as of the Effective Date and reflected in the ordinary course Schedule 5.02(a) hereto, including any renewals, extensions or replacements of business any such Lien, provided that:
(A) no additional property is encumbered in connection with workmen's compensationany such renewal, unemployment insurance extension or replacement of any such Lien; and
(B) there is no increase in the aggregate principal amount of Debt secured by any such Lien from that which was outstanding or permitted to be outstanding with respect to such Lien as of the Effective Date or the date of such renewal, extension or replacement, whichever is greater, other forms than increases attributable to accrued interest, premiums, fees and expenses payable by the Borrower in connection with such renewal, extension or replacement;
(vii) (x) Liens incurred after the Effective Date given to secure the payment of governmental insurance the purchase price and/or other direct costs incurred in connection with the acquisition, construction, improvement or benefitsrehabilitation of assets (including Liens incurred by the Borrower or any Subsidiary securing Debt incurred in connection with industrial development bond and pollution control financings), and (y) Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or a Subsidiary of any business entity (including a Subsidiary) then owning such assets, whether or not such existing Liens were given to secure the payment of the purchase price of the assets to which they attach, provided that (A) except in the case of Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or a Subsidiary of any business entity (including a Subsidiary) then owning such assets, the Lien shall be created within twelve (12) months of the later of the acquisition of, or the completion of the construction, improvement or rehabilitation in respect of, such assets and shall attach solely to secure performance the assets acquired, purchased, or financed, and (B) except in the case of statutory Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or a Subsidiary of any business entity (including a Subsidiary) then owning such assets or Liens in connection with industrial development bond or pollution control financings, at the time of the incurrence of such Lien, the aggregate amount remaining unpaid on all Debt secured by Liens on such assets whether or not assumed by the Borrower or a Subsidiary shall not exceed an amount equal to 75% of the lesser of the total purchase price or fair market value, at the time such Debt is incurred, of such assets (as determined in good faith by the Board of Directors of the Borrower);
(viii) Liens arising from the sale or transfer of accounts receivable and notes of the Borrower and its Subsidiaries, provided that the Borrower and its Subsidiaries shall receive adequate consideration therefor;
(ix) Liens on notes or accounts receivable sold or transferred in a transaction which is accounted for as a true sale under GAAP;
(x) Liens securing Debt and other obligations, leases to the extent that such Liens are not otherwise permitted by this Section 5.02(a), provided that immediately after giving effect to the incurrence of any such Lien, the sum of the aggregate principal amount of all outstanding Debt and contracts other obligations secured by Liens permitted solely by reason of this Section 5.02(a)(x) (together with any renewals, extensions, refinancings or refundings thereof) shall not exceed the higher of (A) 15% of Consolidated Net Tangible Assets and (B) $200,000,000;
(xi) Liens incurred in connection with any renewals, extensions, refinancings or refundings of any Debt secured by Liens described in Sections 5.02(a)(vii), (viii), (ix) or (x), provided that there is no increase in the aggregate principal amount of Debt secured thereby, other than for borrowed moneyincreases attributable to accrued interest, premiums, fees and expenses payable by the Borrower in connection with such renewal, extension or refinancing or refunding, and no additional property is encumbered;
(xii) Liens on assets securing obligations under Hedge Agreements entered into in the ordinary course of business and for non-speculative purposes, provided that the aggregate fair market value of assets pledged in reliance on this clause (xii) shall not at any time exceed $50,000,000;
(xiii) Liens of collecting banks arising under Section 4-210 of the UCC; and
(xiv) Liens of issuers or nominated persons arising under Section 5-118 of the UCC on documents presented under letters of credit. In the event that any property of the Borrower or its Subsidiaries is subjected to a lien in violation of this Section 5.02(a), but no other provision of this Agreement (the Indebtedness secured by such lien being referred to as “Prohibited Secured Indebtedness”), such violation shall not constitute an Event of Default hereunder if the Borrower, substantially simultaneously with the incurrence of such lien, makes or causes to be made a provision whereby the obligations of the Borrower under the Loan Documents will be secured equally and ratably with all Prohibited Secured Indebtedness and delivers to the Agent and the Lenders an opinion to that effect, and, in any case, such obligations shall have the benefit, to the full extent that, and with such priority as, the Lenders may be entitled to under applicable law, of an equitable lien to secure such obligations on surety such property of the Borrower or appeal bonds; its Subsidiaries that secures Prohibited Secured Indebtedness. The opinion referred to in the preceding sentence shall be addressed to the Administrative Agent and (vi) judgment Liens in existence less than 30 days the Lenders, shall contain such qualifications and limitations as are reasonably acceptable to the Administrative Agent and the Required Lenders and shall be delivered by counsel of nationally recognized standing selected by the Borrower and satisfactory to the Administrative Agent and the Required Lenders. Such counsel shall be deemed to be satisfactory to the Administrative Agent and the Required Lenders unless, during the 15 day period after the entry thereof or with respect Administrative Agent has received written notice identifying such counsel, the Administrative Agent shall have objected to which execution has been stayed or such selection in writing to the payment of which is covered in full (subject Borrower. Notwithstanding anything to a customary deductiblethe contrary herein, this Section 5.02(a) by insuranceshall not apply to Treasury Stock.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit Neither the Company nor any of its Subsidiaries to create will create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case except that the Company and its Subsidiaries may create, incur, assume or suffer to secure any indebtedness of any Person other than exist the following which are permitted liens (i"Permitted Liens"):
(a) Liens in favor of Bank; securing the Obligations;
(iib) Liens reflected for taxes, assessments or governmental charges or levies on SCHEDULE 6.2(CProperty of the Company and its Subsidiaries to the extent not required to be paid pursuant to Sections 5.01 and 5.04;
(c) heretoLiens set forth in the attached Schedule 6.01 securing Debt described therein and refinancings of such Debt; provided that, the aggregate principal amount of such Debt shall not be renewed, refinanced or extended if the amount of such Debt so renewed, refinanced or extended is greater than the outstanding amount of such Debt on the Closing Date;
(iiid) purchase money Liens upon imposed by law or in any personal property acquired or held by Borrower or any Subsidiary contract, such as preferred maritime Liens incurred in the ordinary course of business (including liens for wages, tort, general average salvage, repair, supplies, towage, use of a drydock facility or marine railway, or other necessaries supplied to a vessel), carrier's, warehousemen's, mechanic's, materialmen's, repairmen's or other like Liens arising in the ordinary course of business (whether or not statutory) which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings, for which a reserve or other appropriate provision, if any, as shall be required by GAAP, shall have been made;
(e) deposits to secure the purchase price performance of bids, trade contracts, leases, statutory obligations and other obligations of a like nature incurred in the ordinary course of business in an aggregate amount outstanding at any time not to exceed $7,500,000.00;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, leases, subleases, licenses, sublicenses, restrictions on the use of Property or minor imperfections in title thereto which, individually and in the aggregate, could not reasonably be expected to cause a Material Adverse Change, and which do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(g) Liens on Property of Persons which become Subsidiaries of the Company after the Closing Date securing Debt permitted hereby; provided that, (i) such property Liens are in existence at the time the respective Persons become Subsidiaries of the Company and were not created in anticipation thereof, (ii) the Debt secured by such Liens (A) is secured only by such Property and not by any other assets of the Subsidiary acquired, (B) is not increased in amount and (C) the aggregate principal amount of the indebtedness secured by the Liens permitted by this paragraph (g) shall not exceed $5,000,000.00 at any time, (iii) the Company's Consolidated EBITDA is greater than $65,000,000.00 for the four fiscal quarters most recently ended and (iv) the Leverage Ratio calculated as of the most recent fiscal quarter for which financial statements are available is less than 1.50 to 1.00;
(h) Liens arising in the ordinary course of business out of pledges or deposits under workers' compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower;
(i) purchase money financing Liens or purchase money security interests upon or in any equipment acquired or held by the Company or any of its Subsidiaries in the ordinary course of business prior to or at the time of the Company's or such Subsidiary's acquisition of such equipment; provided that, (i) the Debt secured by such Liens (A) was incurred solely for the purpose of financing the acquisition of rights in or use such equipment, and does not exceed the aggregate purchase price of such property; equipment, (B) is secured only by such equipment and not by any other assets of the Company and its Subsidiaries, (C) is not increased in amount, and (ivD) the aggregate principal amount of the indebtedness secured by the Liens permitted by this paragraph (i) shall not exceed $5,000,000.00 at any time, (ii) the Company's Consolidated EBITDA is greater than $65,000,000.00 for the four fiscal quarters most recently ended and (iii) the Leverage Ratio calculated as of the most recent fiscal quarter for which financial statements are available is less than 1.50 to 1.00.
(j) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in securing any MARAD Financing; provided that each such Lien encumbers only the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business property financed in connection with workmen's compensationthe creation of any such Debt and any other MARAD Collateral; and
(k) Liens securing Capitalized Leases to the extent such Debt is permitted under Section 6.02(h); provided that (i) each such Lien only encumbers the property acquired in connection with the creation of such Capital Lease and all proceeds therefrom and (ii) the fair market value of the collateral securing any such Debt may exceed the outstanding principal amount of such Debt only to the extent such excess is within customary commercial bank lending and collateralization requirements. Notwithstanding the foregoing, unemployment insurance the Company shall not, nor shall it permit any of its Subsidiaries to, create, assume, incur or suffer to exist, any Lien on or in respect of (i) any assets relating to or arising from the Mortgaged Vessels whether now owned or hereafter acquired, including, without limitation, any accounts receivable, inventory, equipment, and general intangibles (each as defined in Article 9 of the UCC) other forms than Liens in favor of governmental insurance the Administrative Agent for the benefit of the Lenders, (ii) the Capital Stock of the Company or benefitsany of its Subsidiaries, or to secure performance of statutory obligations(iii) GP 35, leases GP37, MV Shamal and contracts MV Selatan, except in each case, Permitted Liens under clauses (other than for borrowed moneya), (b), (d), (f) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vih) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceabove.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its their Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its their Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following ("Permitted Liens"):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto; , and the renewal and replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due be required by Section 7.01(c) hereof;
(iv) Liens created by operation of law or thereafter payable without penaltyleases (other than Liens created under Environmental Laws), or Liens of carrierssuch as landlords' liens, warehousemenmaterialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money, or (B) materially impair the value of such property or materially impair the use thereof by the Parent or any of its Subsidiaries in full the normal conduct of such Person's business;
(subject to a customary deductiblevii) purchase money liens on or purchase money security interests in equipment acquired or held in the ordinary course of business of the Parent and its Subsidiaries; and
(viii) Liens securing Capitalized Leases permitted by insuranceSection 7.02(g).
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit Neither the Company nor any of its Subsidiaries to create will create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case except that the Company and its Subsidiaries may create, incur, assume or suffer to secure any indebtedness of any Person other than exist the following which are permitted liens (i"Permitted Liens"):
(a) Liens in favor of Bank; securing the Obligations;
(iib) Liens reflected for taxes, assessments or governmental charges or levies on SCHEDULE 6.2(CProperty of the Company and its Subsidiaries to the extent not required to be paid pursuant to Sections 5.01 and 5.04;
(c) heretoLiens set forth in the attached Schedule 6.01 securing Debt described therein and refinancings of such Debt; provided that, the aggregate principal amount of such Debt shall not be renewed, refinanced or extended if the amount of such Debt so renewed, refinanced or extended is greater than the outstanding amount of such Debt on the Closing Date;
(iiid) purchase money Liens upon imposed by law or in any personal property acquired or held by Borrower or any Subsidiary contract, such as preferred maritime Liens incurred in the ordinary course of business (including liens for wages, tort, general average salvage, repair, supplies, towage, use of a drydock facility or marine railway, or other necessaries supplied to a vessel), carrier's, warehousemen's, mechanic's, materialmen's, repairmen's or other like Liens arising in the ordinary course of business (whether or not statutory) which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings, for which a reserve or other appropriate provision, if any, as shall be required by GAAP, shall have been made;
(e) deposits to secure the purchase price performance of bids, trade contracts, leases, statutory obligations and other obligations of a like nature incurred in the ordinary course of business in an aggregate amount outstanding at any time not to exceed $7,500,000.00;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, leases, subleases, licenses, sublicenses, restrictions on the use of Property or minor imperfections in title thereto which, individually and in the aggregate, could not reasonably be expected to cause a Material Adverse Change, and which do not in any case materially detract from the value of the Property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(g) Liens on Property of Persons which become Subsidiaries of the Company after the Closing Date securing Debt permitted hereby; provided that, (i) such property Liens are in existence at the time the respective Persons become Subsidiaries of the Company and were not created in anticipation thereof and (ii) the Debt secured by such Liens (A) is secured only by such Property and not by any other assets of the Subsidiary acquired, and (B) is not increased in amount;
(h) Liens arising in the ordinary course of business out of pledges or deposits under workers' compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower;
(i) purchase money financing Liens or purchase money security interests upon or in any equipment acquired or held by the Company or any of its Subsidiaries in the ordinary course of business prior to or at the time of the Company's or such Subsidiary's acquisition of such equipment; provided that, the Debt secured by such Liens (i) was incurred solely for the purpose of financing the acquisition of rights in or use such equipment, and does not exceed the aggregate purchase price of such property; equipment, (ii) is secured only by such equipment and not by any other assets of the Company and its Subsidiaries, (iii) is not increased in amount, and (iv) the aggregate principal amount of the indebtedness secured by the Liens for taxes, assessments or other governmental charges or levies permitted by this paragraph (i) shall not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books exceed $10,000,000.00;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vj) Liens incurred in securing any MARAD Financing, including the ordinary course of business Hercules Title XI Issue; provided that each such Lien encumbers only the property financed in connection with workmen's compensation, unemployment insurance or the creation of any such Debt and any other forms MARAD Collateral; and
(k) Liens securing Capitalized Leases to the extent such Debt is permitted under Section 6.02(j); provided that (i) each such Lien only encumbers the property acquired in connection with the creation of governmental insurance or benefits, or to secure performance of statutory obligations, leases such Capital Lease and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; all proceeds therefrom and (viii) judgment Liens in existence less than 30 days after the entry thereof or with respect fair market value of the collateral securing any such Debt may exceed the outstanding principal amount of such Debt only to which execution has been stayed or the payment of which extent such excess is covered in full (subject to a within customary deductible) by insurancecommercial bank lending and collateralization requirements.
Appears in 1 contract
Liens, Etc. Create or suffer to existThe Borrower will not, or and will not permit any of its Subsidiaries to create or any Holdco Entity to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, except that the Borrower or any of its Subsidiaries or any Holdco Entity may create, incur, assume, or suffer to exist Liens (“Permitted Liens”):
(a) securing the Obligations;
(b) for taxes, assessments, governmental charges, or levies on Property of the Borrower or any Guarantor not yet due or that (provided foreclosure, sale or other similar proceedings shall not have been initiated) are being contested in each case good faith by appropriate proceedings, and such reserve as may be required by GAAP shall have been made therefor;
(c) in favor of bankers and/or financial institutions in respect of deposit accounts, other Liens imposed by law, such as landlords’, carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are being contested in good faith by appropriate proceedings, provided such reserve as may be required by GAAP shall have been made therefor; 3rd Amended/Restated Credit Agreement
(d) arising in the ordinary course of business out of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower or any indebtedness Guarantor;
(e) comprised of minor defects, irregularities, and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within the areas covered by the easements, leases, licenses and other rights in real property in favor of the Borrower or any Person of its Subsidiaries or any Holdco Entity which, individually and in the aggregate, do not materially interfere with the ordinary conduct of Business, do not materially detract from the value or the use of the property which they affect, and could not reasonably have a Material Adverse Effect;
(f) comprised of deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business;
(g) created out of judgments or awards against the Borrower or any Guarantor and that (i) Liens in favor do not give rise to an Event of Bank; Default and (ii) Liens reflected on SCHEDULE 6.2(Cwith respect to which the Borrower or any Guarantor at the time shall be properly and timely prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review;
(i) hereto; (iii) constituting purchase money Liens or security interests upon or in any personal property Property acquired or held by the Borrower or any Subsidiary of its Subsidiaries or any Holdco Entity in the ordinary course of business to secure the purchase price of such property Property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in or use of such property; Property and (ivii) securing Capital Leases; provided that (A) the aggregate principal amount of the indebtedness secured by the Liens for taxespermitted by this paragraph (h) shall not exceed the greater of (x) $50,000,000 and (y) two and one-half percent (2.5%) of the Borrower’s Consolidated Net Tangible Assets, assessments (B) no such Lien may extend to or cover any Property other governmental charges than the Property being acquired or levies leased, and (C) no such renewal or refinancing may extend to or cover any property not yet due previously subject to the Lien being renewed or thereafter payable without penalty, refinanced;
(i) assumed by Borrower or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, its Subsidiaries or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business Holdco Entity in connection with workmen's compensationan Acquisition; provided, unemployment insurance or other forms that such Liens were not created in contemplation of governmental insurance or benefits, or such Acquisition and do not extend to secure performance of statutory obligations, leases and contracts (any assets other than for borrowed moneythose acquired, and the applicable Debt is permitted by Section 6.02(i);
(j) entered into (i) existing on the Amendment No. 1 Closing Date and listed on Schedule 6.01 attached hereto and (ii) any Liens in favor of the Parent (or any assignee or successor thereto that is an Affiliate of the Parent) securing certain obligations owing to the Parent (or such Affiliate assignee or successor) similar to those obligations owing under the Pipelines and Terminals Agreements so long as such Liens are subordinated to the Liens on the same assets securing the Obligations on terms not less advantageous to the Administrative Agent and the Lenders and similar to those contained in the ordinary course Subordination, Non-Disturbance and Attornment Agreement executed by the Administrative Agent and the Parent as of business July 8, 2005, in each case, including any renewals or extensions thereof; provided that the property covered thereby is not increased and any renewal or extension of the obligations secured or benefitted thereby is permitted by Section 6.02; 3rd Amended/Restated Credit Agreement
(k) securing Debt permitted under Section 6.02(k); and
(l) on cash and Liquid Investments securing Swap Contracts between the Borrower, any Guarantor or any of their Subsidiaries and any Person who is not a Lender or an Affiliate of a Lender party to secured obligations on surety or appeal bondssuch Swap Contract; and (vi) judgment Liens in existence less than 30 days after provided the entry thereof or with respect to which execution has been stayed or the payment aggregate amount of which is covered in full (cash and/or Liquid Investments subject to a customary deductible) by insurancesuch Liens may at no time exceed $25,000,000.
Appears in 1 contract
Liens, Etc. Create Create, assume or suffer to exist, or permit exist any Lien upon any of its Subsidiaries to create property or suffer to exist, any Lien upon or with respect to any of its propertiesassets (other than Unrestricted Margin Stock), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries ; provided that this Section shall not apply to assign, any right to receive income, in each case to secure any indebtedness of any Person other than the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies taxes not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens that are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on GAAP;
(ii) other statutory, common law or contractual Liens incidental to the conduct of its books business or the ownership of its property and assets that (but only if such Liens A) were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and (B) do not, individually or not in the aggregate, result in a Materially Adverse Change aggregate materially detract from the value of its property or assets or materially adversely affect impair the rights use thereof in the operation of Bank); its business;
(viii) Liens incurred pledges or deposits in the ordinary course of business in connection with workmen's workers’ compensation, unemployment insurance or and other forms of governmental insurance or benefitssocial security legislation, or other than any Lien imposed by ERISA;
(iv) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, leases and contracts surety bonds (other than for borrowed money) entered into bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business business;
(v) Liens on property or assets to secured secure obligations on surety or appeal bonds; and owing to any member of the Consolidated Group;
(vi) judgment (A) purchase money Liens on fixed assets or for the deferred purchase price of property; provided that such Lien is limited to the purchase price and only attaches to the property being acquired and (B) capital leases;
(vii) easements, zoning restrictions or other minor defects or irregularities in existence less than 30 days title of real property not interfering in any material respect with the use of such property in the business of any member of the Consolidated Group;
(viii) Liens existing on the date of this Agreement and set forth on Schedule 5.02(a) hereto;
(ix) any Lien granted to Agent, for the benefit of the Lenders;
(x) Liens on Receivables Related Assets of a Receivables Subsidiary in connection with the sale of such Receivables Related Assets pursuant to Section 5.02(f)(iii) hereof;
(xi) in addition to the Liens permitted herein, additional Liens, so long as the aggregate principal amount of all Debt and other obligations secured by such Liens, when taken together with, without duplication, the principal amount of all Debt of Subsidiaries that are not Guarantors incurred pursuant to Section 5.02(e)(viii) below, does not exceed an amount equal to 8.5% of the Consolidated Total Assets at the time such Debt or other obligation is created or incurred;
(xii) Permitted Encumbrances;
(xiii) any Lien existing on any property or asset prior to the acquisition thereof by any member of the Consolidated Group or existing on any property or assets of any Person at the time such Person becomes a Subsidiary after the entry thereof Effective Date; provided that (i) such Lien is not created in contemplation of or in connection with respect such acquisition or such Person becoming a Subsidiary, as the case may be, and (ii) such Lien does not apply to which execution has been stayed any other property or assets of any member of the payment Consolidated Group (other than Persons who become members of which is covered the Consolidated Group in full connection with such acquisition);
(xiv) Liens arising in connection with any margin posted related to Hedge Agreements entered other than for speculative purposes;
(xv) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clauses (vi), (viii), (xi) and (xiii) of this Section 5.02(a); provided that (x) the principal amount of the obligations secured thereby shall be limited to the principal amount of the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof), (y) such Lien shall be limited to all or a part of the assets that secured the obligation so extended, renewed or replaced and (z) in the case of any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (xi) of this Section 5.02(a) such extension, renewal or replacement (or successive renewals or replacements) shall utilize basket capacity under such clause (xi) prior to any excess amount not permitted thereunder being permitted under this clause (xv); and
(xvi) Liens on the products and proceeds (including, without limitation, insurance condemnation and eminent domain proceeds) of and accessions to, and contract or other rights (including rights under insurance policies and product warranties) derivative of or relating to, property subject to a customary deductible) by insuranceLiens under any of the paragraphs of this Section 5.02(a).
Appears in 1 contract
Samples: Credit Agreement (Steris Corp)
Liens, Etc. Create or suffer to exist, or permit any of its their ----------- Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following ("Permitted Liens"): ---------------
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto; , and the renewal and replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due be required by Section 7.01(c) hereof;
(iv) Liens created by operation of law or thereafter payable without penaltyleases (other than Liens created under Environmental Laws), or Liens of carrierssuch as landlords' liens, warehousemenmaterialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money, or (B) materially impair the value of such property or materially impair the use thereof by the Borrowers, the Guarantors or any of their Subsidiaries in full the normal conduct of such Person's business;
(subject to a customary deductiblevii) Liens created under the Factoring Agreements;
(viii) purchase money liens on or purchase money security interests in equipment acquired or held in the ordinary course of business of the Borrowers, the Guarantors and their Subsidiaries securing Indebtedness not exceeding in any Fiscal Year of the Company the aggregate principal amount of $500,000 for the Borrowers, the Guarantors and their Subsidiaries;
(ix) Liens securing Capitalized Leases permitted by insuranceSection 7.02(g);
(x) Liens in favor of Old ME Corp. on the Capital Stock of Miss Xxxxx securing the Miss Xxxxx Earn Out Payment; and
(xi) Liens in favor of the Sellers on the Capital Stock of Xxxx-Xx securing the Xxxx-Xx Earn Out Payment.
Appears in 1 contract
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Facilities Obligations in accordance with the provisions of rights in or use of such property; and Section 6.14), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 6.09;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 6.09, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance and other types of social security or other forms of governmental insurance or benefits, (ii) to secure (or to secure obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and contracts (other than for borrowed money) similar charges or encumbrances, which, in each case are granted, entered into or created in the ordinary course of the business of the Borrower or any Restricted Subsidiary and which do not interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to secured obligations on surety the Borrower or appeal bonds; any other Restricted Subsidiary;
(g) Liens created by any of the Collateral Documents securing the Facilities Obligations, the Mortgage Notes and the Parity Debt;
(h) Liens created by any of the Collateral Documents securing Indebtedness incurred in accordance with Section 6.01(b), Section 6.01(h) or Section 6.01(j) (but only to the extent such Indebtedness under Section 6.01(j) is incurred to any Lender) or, to the extent incurred to finance the making of capital improvements, repairs and additions to the Borrower's Assets, Section 6.01(f) (but only to the extent such Liens comply with the requirements thereof), provided that (i) such Liens are effected through an amendment to the Collateral Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Collateral Documents with the Secured Parties, (ii) the Collateral Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (iii) the Borrower has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to the Borrower of such property or assets and the fair market value of such property or assets (as determined in good faith by the General Partner) and to the effect that the amendments to the Collateral Documents required by this Section 6.02(h) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect and that such incurrence of Indebtedness pursuant to Section 6.01(b), Section 6.01(f), Section 6.01(h) or Section 6.01(j), as the case may be, complies in all respects with the requirements of such Section and (viiv) judgment Liens in existence less than 30 days after the entry thereof or Borrower has delivered to the Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Collateral Documents has attached and is perfected with respect to which execution has been stayed such additional property and assets;
(i) Liens existing on any property of a newly-acquired Restricted Subsidiary at the time of acquisition or existing prior to the payment time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by the Borrower or any Restricted Subsidiary; provided that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is covered an improvement to or is acquired for specific use in full connection with such acquired property, (subject ii) the Indebtedness secured by any such Lien is permitted under Section 6.01(f) or (g) and, in the case of any such Indebtedness incurred under Section 6.01(f), the total principal amount thereof is no greater than the excess, if any, of such amount over the aggregate amount of the unused Tranche B Revolving Credit Commitments on the date of incurrence thereof, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to the Borrower or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the General Partner) at the time of such acquisition by the Borrower or such Restricted Subsidiary, (iv) the aggregate principal amount of all Indebtedness secured by any such Liens shall at no time exceed $5,000,000 and (v) any such Lien shall not have been created or assumed in contemplation of such acquisition of a customary deductibleRestricted Subsidiary or property by the Borrower or any Restricted Subsidiary;
(j) Liens in amounts not exceeding $100,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(k) Liens arising from or constituting encumbrances or exceptions to title to the Assets expressly permitted by insurance.the Collateral Documents;
Appears in 1 contract
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, or assignany income or profits therefrom, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.4 hereof;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdue, yet due or any such Liens the payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves (i) not incurred or made in accordance connection with GAAP the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in favor of lessors under capital leases and leases of equipment in the ordinary course of business;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been set aside on its books discharged or execution thereof stayed pending appeal or review, or shall not have been discharged within 60 days after expiration of any such stay;
(but only if such Liens g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in each case either (i) are granted, entered into or created in the ordinary course of the business of the Borrower or any Restricted Subsidiary or (ii) do not, individually or in the aggregate, result in present a Materially reasonable likelihood of having a Material Adverse Change or materially adversely affect the rights of Bank); Effect;
(vh) Liens incurred in existing on any property of any Person at the ordinary course time it becomes a Subsidiary of business the Borrower, or existing at the time of acquisition upon any property acquired by the Borrower or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Borrower or such Subsidiary to pay all or any part of the purchase price (a “Purchase Money Lien”) of property (including without limitation Capital Stock and other securities) acquired by the Borrower or a Restricted Subsidiary, provided, that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for use specifically in connection with workmen's compensationsuch acquired property, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed moneyii) entered into in the ordinary course case of business or a Purchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to secured obligations on surety or appeal bonds; the lesser of (A) the cost to the Borrower and the Restricted Subsidiaries of such property and (viB) judgment Liens the fair market value of such property at the time of the acquisition thereof (as determined in existence less good faith by the General Partner), (iii) any such Purchase Money Lien shall be created not later than 30 days after the entry thereof acquisition of such property and (iv) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person’s becoming a Subsidiary of the Borrower or such acquisition of property by the Borrower or any Subsidiary;
(i) Liens securing other obligations otherwise permitted under this Agreement, including, but not limited to, Capitalized Lease Obligations, which obligations secured by such Liens shall not exceed an amount equal to 3% of Consolidated Net Tangible Assets at such time;
(j) Liens securing the First Mortgage Notes that attach to the assets of the Borrower or any Restricted Subsidiary pursuant to Section 1.3 of either of the First Mortgage Note Agreements; provided, that at no time when such Liens exist, shall the Leverage Ratio exceed 2.00 to 1.00; and
(k) easements, exceptions or reservations in any property of the Borrower or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Borrower or any Restricted Subsidiary. Notwithstanding anything in this Agreement to the contrary, until the AEPLP Guaranty Date, other than Liens permitted by subsections (a), (b), (c), (d), (f), (g), (h) and (i) of this Section 8.3, the Borrower will not permit AEPLP or any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to which execution has been stayed any property or the payment asset (including any document or instrument in respect of which is covered in full (subject to a customary deductiblegoods or accounts receivable) by insuranceof AEPLP or such Subsidiary, whether such property or assets are now owned or held or hereafter acquired, or any income or profits therefrom.
Appears in 1 contract
Liens, Etc. Create or suffer to existThe Borrower will not, or and will not permit any of its Subsidiaries to create to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, except that the Borrower or any of its Subsidiaries may create, incur, assume, or suffer to exist Liens ("Permitted Liens"):
(a) Securing the Obligations;
(b) For taxes, assessments, governmental charges, or levies on Property of the Borrower or any Guarantor not yet due or that (provided foreclosure, sale or other similar proceedings shall not have been initiated) are being contested in each case good faith by appropriate proceedings, and such reserve as may be required by GAAP shall have been made therefor;
(c) In favor of bankers and/or financial institutions in respect of deposit accounts, other Liens imposed by law, such as landlords', carriers', warehousemen's and mechanics' liens and other similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are being contested in good faith by appropriate proceedings, provided such reserve as may be required by GAAP shall have been made therefor;
(d) Arising in the ordinary course of business out of pledges or deposits under workers' compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower or any indebtedness Guarantor;
(e) Comprised of minor defects, irregularities, and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within the areas covered by the easements, leases, licenses and other rights in real property in favor of the Borrower or any Person of its Subsidiaries which, individually and in the aggregate, do not materially interfere with the ordinary conduct of Business, do not materially detract from the value or the use of the property which they affect, and could not reasonably have a Material Adverse Effect;
(f) Comprised of deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business;
(g) Created or arising after the date of this Agreement out of judgments or awards against the Borrower or any Guarantor and that (i) Liens in favor do not give rise to an Event of Bank; Default and (ii) Liens reflected on SCHEDULE 6.2(Cwith respect to which the Borrower or any Guarantor at the time shall be properly and timely prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review;
(h) hereto; Securing obligations of such Person as lessee under Capital Leases permitted by Section 6.02;
(iiii) Constituting purchase money Liens or security interests created or arising after the date of this Agreement upon or in any personal property Property acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business to secure the purchase price of such property Property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in such Property; provided that (A) the aggregate principal amount of the indebtedness secured by the Liens permitted by this paragraph (i) shall not exceed $10,000,000, (B) no such Lien may extend to or use of such property; cover any Property other than the Property being acquired, and (ivC) Liens for taxes, assessments no such renewal or other governmental charges refinancing may extend to or levies cover any property not yet due previously subject to the Lien being renewed or thereafter payable without penalty, refinanced; and
(j) Assumed by Borrower or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business Subsidiaries in connection with workmen's compensationan Acquisition, unemployment insurance or other forms provided, that the aggregate amount of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to all Debt secured obligations on surety or appeal bonds; and (vi) judgment by such Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurancemay not exceed $10,000,000.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its their Subsidiaries to to, or permit the Parent to, create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (each, a "Permitted Lien"):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto, and the renewal and replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced; in no event shall any Liens exist on SCS's interest in any Ground Lease other than in favor of the FA Collateral Agent pursuant to a Mortgage in favor of the landlord pursuant to applicable law, or in favor of other Persons pursuant to clause (vi) below, in favor of the Term Loan Agent subject to the terms of the Intercreditor Agreement;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.01(c) hereof;
(iv) Liens created by operation of law (other than Liens created under Environmental Laws), or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(vi) easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially impair the value of such property or materially impair the use thereof by any of the Companies or any of their Subsidiaries in the normal conduct of such Person's business;
(vii) Liens created under the Term Loan Documents; provided, that such Liens shall secure only those obligations which they secure on the Effective Date and modifications, extensions, renewals and replacements thereof permitted hereunder;
(viii) Liens (other than the Liens securing the GTR Financing) securing Capitalized Leases permitted by Section 7.02(g), purchase money liens or purchase money security interests securing Indebtedness permitted by Section 7.02(b)(vi); provided, that such security interests do not encumber any other property or assets of the Companies or their Subsidiaries;
(ix) Liens granted and/or reserved pursuant to the Lease Documents as in effect on July 31, 2000;
(x) Liens on the Capital Stock of Alon USA granted by the Parent to Bank Leumi pursuant to the Warrant Purchase Documents;
(xi) Liens on forty percent (40%) of the Capital Stock of Alon USA granted by the Parent to the Minority Holders pursuant to the Minority Purchase Documents; provided that (A) such Liens shall be released upon payment in full of the Minority Purchase Price and the Subordinated Investor Loans owed by Alon Capital to certain of the Minority Holders, and (B) such Liens shall secure only the portion of the Minority Purchase Price not paid to the Minority Holders on the date of the sale by the Minority Holders of the Capital Stock of Alon Capital to Alon USA and the prepayment of the Subordinated Investor Loans owed by Alon Capital to certain of the Minority Holders and no other obligation of any of the Companies to the Minority Holders;
(xii) Liens in favor of (A) the GECC Borrower on all equipment, including, without limitation, all machinery, appliances, furniture, equipment, trade fixtures, gas pumps and canopies and other tangible personal property (but excluding inventory, general intangibles, payment intangibles, cash, instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, letter-of-credit rights, securities and all other investment property, any other contract rights or rights to the payment of money, and all other intangible property), in each case owned by SCS and to the extent such equipment is now or hereafter located on or at, or used solely in connection with, any of the owned real properties transferred to the GECC Borrower on October 1, 2002, and (B) GECC on real and personal property owned by the Subsidiaries of SCS to the extent created under the GECC Loan Documents;
(xiii) Liens on the GTR Assets of the Companies granted under the GTR Loan Documents to secure the GTR Financing;
(xiv) Liens deemed to exist in connection with leases or subleases granted to others in the ordinary course of business that do not materially interfere with the conduct of the business of any of the Companies;
(xv) Liens existing on any property or asset prior to the acquisition thereof by any Company or any Subsidiary thereof; provided that (A) such Lien is not created in contemplation of or in connection with such acquisition, (B) such Lien does not apply to any other property or assets of any Company or any Subsidiary thereof, (C) such Lien does not (I) materially interfere with the use, occupancy and operation of any real property leased or owned by any Company or Subsidiary thereof, (II) materially reduce the fair market value of such real property but for such Lien or (III) result in any material increase in the cost of operating, occupying, owning or leasing such real property, and (D) any Indebtedness secured by such Lien is permitted by Section 7.02(b)(xv);
(xvi) Liens arising out of judgments or awards in respect of which a Company or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings; provided, that the aggregate amount of all such judgments or awards (and any cash and the fair market value of any property subject to such Liens) does not exceed $2,500,000 at any time outstanding (net of any amounts as to which any insurance company or other indemnifying party (other than the Borrower or an Affiliate of the Borrower) has acknowledged liability);
(xvii) Liens on cash or cash equivalents to secure obligations under Hedging Agreements that are not speculative in nature and are entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed hedging accounts maintained with dealers of NYMEX or similar contracts requiring the payment maintenance of which is covered in full cash margin account balances; provided, that (i) the aggregate amount of all cash and cash equivalents subject to such Liens does not exceed $5,000,000 at any time, and (ii) such Hedging Agreements are subject to a customary deductibleperfected, first priority security interest in favor of the Agent; and
(xviii) by insuranceother Liens securing obligations, actual or contingent, in an aggregate amount not greater than $2,500,000 at any time outstanding.
Appears in 1 contract
Liens, Etc. Create or suffer to existThe Borrower, or permit any of its the Parent and their respective ---------- Subsidiaries to create will not create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case except that the Borrower and its Subsidiaries may create, incur, assume or suffer to secure any indebtedness of any Person other than exist Liens:
(ia) Liens in favor of Bank; securing the Obligations;
(iib) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies on Property of the Borrower or any Guarantor to the extent not yet due or thereafter payable without penaltyrequired to be paid pursuant to Sections 5.03;
(c) imposed by law (such as landlords', or Liens of carriers', warehousemen, 's and mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, ' liens or any such Liens otherwise arising from litigation) (i) which are being diligently contested in good faith and by appropriate proceedings and for proceedings, (ii) with respect to which adequate reserves in accordance conformity with GAAP shall have been set aside on its books provided, (but only if iii) which have not resulted in any Collateral being in jeopardy of being sold, forfeited or lost during or as a result of such Liens do contest, (iv) neither the Administrative Agent nor any Lender could become subject to any civil fine or penalty or criminal fine or penalty, in each case as a result of non-payment of such charge or claim and (v) such contest does not, individually or in the aggregateand could not reasonably be expected to, result in a Materially Material Adverse Change Change;
(d) on leased personal property to secure solely the lease obligations associated with such property;
(e) on the Property of or materially adversely affect Ownership Interests in a Permitted Other Subsidiary securing Indebtedness set forth in paragraph (b) of the rights definition of Bank)"Permitted Other Indebtedness" incurred by such Permitted Other Subsidiary to the extent such Indebtedness is permitted pursuant to the provisions of Section 6.02;
(f) on the Ownership Interests in an Unconsolidated Entity securing Permitted Non-Recourse Unconsolidated Entity Indebtedness incurred by such Unconsolidated Entity; and
(vg) Liens incurred in granted to the ordinary course owner of business a Hospitality Property subject to a Permitted Property Agreement on the accounts receivable, inventory, cash or other property owned by the Borrower or the Borrower's Subsidiary in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurancesuch Hospitality Property.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Meristar Hotels & Resorts Inc)
Liens, Etc. Create Create, incur, assume or suffer to existexist any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance, or permit any other similar type of its Subsidiaries to create or suffer to existpreferential arrangement in the nature of a security interest, any Lien upon or with respect to any of its propertiesproperties or rights, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, collaterally assign any right to receive income, in each case services or property (any of the foregoing being referred to secure any indebtedness of any Person other than herein as a “Lien”), except that the foregoing restrictions shall not apply to Liens:
(i) Liens On the property of the Borrower, securing the obligations of the Borrower under that certain Indenture and Security Agreement, dated as of July 9, 2009, by and between the Borrower, as issuer, and Deutsche Bank Trust Company Americas, as trustee; provided that such obligations do not exceed $1,400,000,000 in favor of Bank; aggregate principal amount;
(ii) Liens reflected for taxes, assessments or governmental charges, levies or fines (including such amounts arising under environmental law) on SCHEDULE 6.2(C) hereto; property of the Borrower or any Material Subsidiary if the same shall not at the time be delinquent or thereafter can be paid without a material penalty, or are being contested in good faith and by appropriate proceedings;
(iii) imposed by law, such as carriers’, warehousemen’s, landlords’, repairmen’s, materialmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business;
(iv) arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, compensation arrangements, supplemental retirement plans not otherwise permitted under clause (xviii) below or other social security or similar legislation;
(v) to secure obligations with respect to (i) bids, tenders, contracts (other than contracts for the repayment of borrowed money), leases, trading contracts, hedge agreements, surety or appeal bonds, performance bonds or similar bonds or other similar obligations made in the ordinary course of business, and (ii) reimbursement obligations in respect of letters of credit issued to support the obligations described in the foregoing clause (i);
(vi) arising out of purchase money mortgages or other Liens upon or in any personal on property acquired or held by the Borrower or any Material Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing Indebtedness incurred solely for the purpose of financing the acquisition of rights in or use of any such property; and (iv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penaltyproperty to be subject to such Liens, or Liens existing on any such property at the time of carriersacquisition, warehousemenor extensions, mechanicsrenewals or replacements of any of the foregoing for the same or a lesser amount; provided that no such Lien shall exceed the fair market value of the property acquired (as determined at the time of purchase), materialmen or extend to or cover any property other than the property being acquired, and landlords incurred no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(vii) constituting attachment, judgment and other similar Liens arising in connection with court proceedings to the extent not constituting an Event of Default under Section 6.01(g);
(viii) constituting easements, exceptions, restrictions, reservations, zoning restrictions and other similar encumbrances, including for the purposes of roads, sewers, pipelines, transmission lines, distribution lines, transportation lines or removal of minerals or timber or for other like purposes or for the joint or common ownership and/or use of property, rights of way, facilities and/or equipment, and defects, irregularities and deficiencies in title of any property and/or rights of way, which in the aggregate do not materially adversely affect the Borrower’s or any Material Subsidiary’s use of its properties;
(ix) on any assets and revenues of a Person existing at the time such Person is merged into or consolidated with the Borrower or any of its Subsidiaries or becomes a Subsidiary of the Borrower or any of its Subsidiaries, and which Lien is not created in contemplation of such event;
(x) created in the ordinary course of business for sums not overdueto secure liability to insurance carriers and Liens on insurance policies and the proceeds thereof (whether accrued or not), rights or any such Liens being diligently contested claims against an insurer or other similar asset securing insurance premium financings;
(xi) in good faith by appropriate proceedings favor of customs and for which adequate reserves revenue authorities arising as a matter of law to secure payment of customs duties in accordance connection with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights importation of Bank); (v) Liens incurred goods in the ordinary course of business business;
(xii) in the nature of rights of setoff, bankers’ liens, revocation, refund, chargeback, counterclaim, netting of cash amounts or similar rights as to deposit accounts, commodity accounts or securities accounts or other funds maintained with a credit or depository institution;
(xiii) created under Section 6.02(b) on the Cash Collateral Account or on cash collateral accounts established by the Borrower to secure investments and guarantees;
(xiv) to the extent constituting Liens, created in connection with workmen's compensationsales, unemployment insurance transfers, leases, assignments or other forms conveyances or dispositions of governmental insurance assets permitted under Section 5.02(c)(i) through (xii), including (x) Liens on assets or benefitssecurities granted or deemed to arise in connection with and as a result of the execution, delivery or to secure performance of statutory obligationscontracts to purchase or sell such assets or securities if such purchase or sale is otherwise permitted hereunder, and (y) rights of first refusal, options or other contractual rights or obligations to sell, assign or otherwise dispose of any interest therein, which rights arise in connection with a sale, transfer or other disposition of assets permitted hereunder;
(xv) to the extent constituting Liens, arising under leases and contracts (other than for borrowed money) entered into in or subleases, licenses or sublicenses granted to others that do not materially interfere with the ordinary course of business of the Borrower and its Material Subsidiaries;
(xvi) to the extent constituting Liens, resulting from any restriction on any equity interest (or project interest, interests in any energy facility (including undivided interests)) of a Person providing for a breach, termination or default under any owners, participation, shared facility, joint venture, stockholder, membership, limited liability company or partnership agreement between such Person and one or more other holders of equity interest (or project interest, interests in any energy facility (including undivided interests)) of such Person, if a security interest or other Lien is created on any such interest as a result thereof;
(xvii) granted on cash or cash equivalents to defease or repay Indebtedness of the Borrower or any of its Subsidiaries no later than 60 days after the creation of such Lien;
(xviii) permitted under Section 5.02(d)(v);
(xix) existing on any asset prior to the acquisition thereof by the Borrower or any of its Subsidiaries and not created in contemplation of such acquisition;
(xx) to the extent constituting Liens, (A) any right reserved to or vested in any municipality or other governmental or public authority (1) by the terms of any right, power, franchise, grant, license or permit granted or issued to the Borrower or its Subsidiaries or (2) to purchase or recapture or to secured obligations on surety designate a purchaser of any property of the Borrower or appeal bondsits Subsidiaries; (B) rights reserved to or vested in any municipality or other governmental or public authority to control or regulate any property of the Borrower or its Subsidiaries or to use such property in a manner that does not materially impair the use of such property for the purposes for which it is held by the Borrower or its Subsidiaries; and (viC) judgment Liens securing obligations or duties of the Borrower or its Subsidiaries to any municipality or other governmental or public authority that arise out of any franchise, grant, license or permit and that affect any property of the Borrower or its Subsidiaries;
(xxi) created in existence less than 30 days after connection with a Permitted Securitization; or
(xxii) other Liens securing obligations of the entry thereof or with respect Borrower and its Subsidiaries in an aggregate amount not to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceexceed $100,000,000 at any time outstanding.
Appears in 1 contract
Liens, Etc. Create Create, incur, assume or suffer to exist, or permit exist any Lien upon any of its Subsidiaries to create property, assets or suffer to exist, any Lien upon or with respect to any of its propertiesrevenues, 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 any indebtedness of any Person other than except for:
(i) Liens for taxes not yet due or which are being contested in favor good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of Bank; such Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary arising in the ordinary course of business to secure the purchase price which are not overdue for a period of such property more than 60 days or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens which are being diligently contested in good faith by appropriate proceedings proceedings;
(iii) pledges or deposits in connection with workers’ compensation, unemployment insurance and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do notother social security legislation, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights including any Lien securing letters of Bank); (v) Liens incurred credit issued in the ordinary course of business in connection with workmen's compensation, unemployment therewith and deposits securing liabilities to insurance or other forms of governmental carriers under insurance or benefits, or and self-insurance programs;
(iv) deposits to secure the performance of statutory obligationsbids, leases and trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(v) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of such Borrower or its Subsidiaries;
(vi) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings to the extent covered by insurance or involving individually or in the aggregate, no more than $50,000,000 at any one time in excess of the applicable insurance coverage, provided that the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within 60 days or, in the case of any stay of execution or enforcement pending appeal, within such lesser time during which such appeal may be taken;
(vii) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business;
(viii) statutory Liens and rights of offset arising in the ordinary course of business or to secured obligations of such Borrower and its Subsidiaries;
(ix) Liens on surety or appeal bonds; receivables and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (related assets subject to a customary deductibleReceivable Financing Transaction;
(x) Liens securing obligations under Hedging Agreements entered into to protect against fluctuations in interest rates or exchange rates or commodity prices and not for speculative purposes, provided that such Liens run in favor of a Lender hereunder or a Person who was, at the time of issuance, a Lender;
(xi) Liens on assets at the time such assets were transferred (whether directly or indirectly) to Borrowers or their Subsidiaries and were not created in anticipation thereof;
(xii) Liens on assets of any Subsidiary of such Borrower (other than, (A) in the case of Cinergy, CG&E, PSI Energy, ULH&P, and (B) in the case of CG&E, ULH&P) created to secure Indebtedness owing by insurancesuch Subsidiary to such Borrower or to any other Subsidiary of such Borrower;
(xiii) Liens arising in connection with Financing Leases in an aggregate amount not to exceed (A) in the case of Cinergy, $350,000,000, (B) in the case of each of CG&E and PSI Energy, $175,000,00 and (C) in the case of ULH&P, $75,000,000 (determined in accordance with GAAP and in the same manner as the calculation of capitalized leases in a balance sheet of the Borrower);
(xiv) Liens securing Indebtedness incurred to finance or refinance the acquisition of assets acquired by such Borrower or any of its Subsidiaries on or after January 1, 2005, if such Indebtedness is incurred within 90 days following such acquisition; provided that such Liens shall be confined solely to the assets so acquired (and improvements and attachments thereto);
(xv) Liens securing Non-Recourse Debt of any Subsidiary of any Borrower incurred to replace financing provided directly or indirectly by such Borrower to such Subsidiary of such Borrower in the form of inter-company loans or equity contributions, so long as the net proceeds of such Non-Recourse Debt are contributed by such Subsidiary to such Borrower in repayment of such financing provided by such Borrower;
(xvi) Liens on assets existing at the time of the acquisition thereof by such Borrower or any Subsidiary of such Borrower; provided, that such Liens shall be confined solely to the assets so acquired;
(xvii) Liens resulting from legal proceedings being contested in good faith by appropriate proceedings by such Borrower or a Subsidiary of such Borrower and as to which such Borrower or such Subsidiary, as the case may be, shall have set aside on its books appropriate reserves in accordance with (and to the extent required by) GAAP;
(xviii) in the case of each of CG&E, PSI Energy and ULH&P, Liens existing or created under the CG&E First Mortgage Trust Indenture, PSI Energy First Mortgage Trust Indenture or ULH&P First Mortgage Trust Indenture, respectively; and
(xix) extensions, renewals or replacements of Liens permitted by the foregoing clauses (i) - (xviii) above.
(xx) Liens not otherwise permitted by the foregoing clauses of this Section 6.2(a) securing obligations in an aggregate principal or face amount at any date not to exceed, (A) in the case of each of Cinergy, CG&E and PSI Energy, $150,000,000 and (B) in the case of ULH&P, $50,000,000; provided that, no Borrower or any Subsidiary of any Borrower shall create, incur, assume or suffer to exist any Lien upon any of the Capital Stock of CG&E, PSI Energy or ULH&P.
Appears in 1 contract
Liens, Etc. Create Create, incur or suffer to exist, or permit any of its Subsidiaries to create create, incur or suffer to exist, any Lien upon on or with respect to any of its properties, whether now owned or hereafter acquired, or assignupon any income or profits therefrom, or acquire or agree to acquire, or permit any of its Subsidiaries Subsidiary to assignacquire, any right to receive incomeproperty or assets upon conditional sales agreements or other title retention devices, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor for taxes and assessments or governmental charges or levies and Liens securing claims or demands of Bank; mechanics and materialmen, provided that payment thereof is not at the time required by Section 5.01(a) or (b);
(ii) Liens reflected on SCHEDULE 6.2(Cany Lien of or resulting from any judgment or award; provided that either (A) hereto; the amount secured thereby does not exceed $200,000,000 or (B) if the amount secured thereby does exceed $200,000,000, the time for the appeal or petition for rehearing of such judgment or award shall not have expired, or the Borrower or a Subsidiary shall in good faith be prosecuting an appeal or proceeding for a review thereof, and execution of such judgment or award shall be stayed pending such appeal or proceeding for review;
(iii) purchase money Liens upon or in any personal property acquired or held incidental to the conduct of business conducted by the Borrower or any Subsidiary and its Subsidiaries in the ordinary course of business to secure or the purchase price ownership of properties and assets owned by the Borrower and its Subsidiaries (including (x) Liens in connection with worker’s compensation, unemployment insurance and other like laws, (y) warehousemen’s and attorneys’ liens and statutory landlords’ liens and (z) Liens consisting of any right of offset, or statutory or consensual banker’s lien, on bank deposits or securities accounts maintained in the ordinary course of business so long as such property bank deposits or to secure purchase money financing incurred solely securities accounts are not established or maintained for the purpose of financing providing such right of offset or banker’s lien) and Liens to secure the acquisition performance of rights in bids, tenders or use of such property; and (iv) Liens for taxestrade contracts, assessments or to secure statutory obligations, surety or appeal bonds or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords like general nature incurred in the ordinary course of business for sums of the Borrower and its Subsidiaries and not in connection with the borrowing of money, provided in each case, the obligation secured is not overdue or, if overdue, or any such Liens is being diligently contested in good faith by appropriate proceedings actions or proceedings;
(iv) survey exceptions or encumbrances, encroachments, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, zoning restrictions, declarations of covenants, conditions and restrictions, other title exceptions or other restrictions as to the use of real properties, which are necessary or appropriate in the good faith judgment of the Borrower for which adequate reserves in accordance with GAAP shall have been set aside on the conduct of the business of the Borrower and its books (but only if such Liens do notSubsidiaries and which, individually or in the aggregate, result do not in any event materially impair their use in the operation of the business of the Borrower or of the Borrower and its Subsidiaries taken as a Materially Adverse Change or materially adversely affect the rights of Bank); whole;
(v) Liens incurred securing Indebtedness of a Subsidiary to the Borrower or to another Subsidiary;
(vi) Liens existing as of the Effective Date and reflected in the ordinary course Schedule 5.02(a) hereto, including any renewals, extensions or replacements of business any such Lien, provided that:
(A) no additional property is encumbered in connection with workmen's compensationany such renewal, unemployment insurance extension or replacement of any such Lien; and
(B) there is no increase in the aggregate principal amount of Debt secured by any such Lien from that which was outstanding or permitted to be outstanding with respect to such Lien as of the Effective Date or the date of such renewal, extension or replacement, whichever is greater, other forms than increases attributable to accrued interest, premiums, fees and expenses payable by the Borrower in connection with such renewal, extension or replacement;
(vii) (x) Liens incurred after the Effective Date given to secure the payment of governmental insurance the purchase price and/or other direct costs incurred in connection with the acquisition, construction, improvement or benefitsrehabilitation of assets (including Liens incurred by the Borrower or any Subsidiary securing Debt incurred in connection with industrial development bond and pollution control financings), and (y) Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or a Subsidiary of any business entity (including a Subsidiary) then owning such assets, whether or not such existing Liens were given to secure the payment of the purchase price of the assets to which they attach, provided that (A) except in the case of Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or a Subsidiary of any business entity (including a Subsidiary) then owning such assets, the Lien shall be created within twelve (12) months of the later of the acquisition of, or the completion of the construction, improvement or rehabilitation in respect of, such assets and shall attach solely to secure performance the assets acquired, purchased, or financed, and (B) except in the case of statutory Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or a Subsidiary of any business entity (including a Subsidiary) then owning such assets or Liens in connection with industrial development bond or pollution control financings, at the time of the incurrence of such Lien, the aggregate amount remaining unpaid on all Debt secured by Liens on such assets whether or not assumed by the Borrower or a Subsidiary shall not exceed an amount equal to 75% of the lesser of the total purchase price or fair market value, at the time such Debt is incurred, of such assets (as determined in good faith by the Board of Directors of the Borrower);
(viii) Liens arising from the sale or transfer of accounts receivable and notes of the Borrower and its Subsidiaries, provided that the Borrower and its Subsidiaries shall receive adequate consideration therefor;
(ix) Liens on notes or accounts receivable sold or transferred in a transaction which is accounted for as a true sale under GAAP;
(x) Liens securing Debt and other obligations, leases to the extent that such Liens are not otherwise permitted by this Section 5.02(a), provided that immediately after giving effect to the incurrence of any such Lien, the sum of the aggregate principal amount of all outstanding Debt and contracts other obligations secured by Liens permitted solely by reason of this Section 5.02(a)(x) (together with any renewals, extensions, refinancings or refundings thereof) shall not exceed the higher of (A) 15% of Consolidated Net Tangible Assets and (B) $200,000,000;
(xi) Liens incurred in connection with any renewals, extensions, refinancings or refundings of any Debt secured by Liens described in Section 5.02(a)(vii), (viii), (ix) or (x), provided that there is no increase in the aggregate principal amount of Debt secured thereby, other than for borrowed moneyincreases attributable to accrued interest, premiums, fees and expenses payable by the Borrower in connection with such renewal, extension or refinancing or refunding, and no additional property is encumbered;
(xii) Liens on assets securing obligations under Hedge Agreements entered into in the ordinary course of business and for non-speculative purposes, provided that the aggregate fair market value of assets pledged in reliance on this clause (xii) shall not at any time exceed $50,000,000;
(xiii) Liens of collecting banks arising under Section 4-210 of the UCC; and
(xiv) Liens of issuers or nominated persons arising under Section 5-118 of the UCC on documents presented under letters of credit. In the event that any property of the Borrower or its Subsidiaries is subjected to a lien in violation of this Section 5.02(a), but no other provision of this Agreement (the Indebtedness secured by such lien being referred to as “Prohibited Secured Indebtedness”), such violation shall not constitute an Event of Default hereunder if the Borrower, substantially simultaneously with the incurrence of such lien, makes or causes to be made a provision whereby the obligations of the Borrower under the Loan Documents will be secured equally and ratably with all Prohibited Secured Indebtedness and delivers to the Agent and the Lenders an opinion to that effect, and, in any case, such obligations shall have the benefit, to the full extent that, and with such priority as, the Lenders may be entitled to under applicable law, of an equitable lien to secure such obligations on surety such property of the Borrower or appeal bonds; its Subsidiaries that secures Prohibited Secured Indebtedness. The opinion referred to in the preceding sentence shall be addressed to the Administrative Agent and (vi) judgment Liens in existence less than 30 days the Lenders, shall contain such qualifications and limitations as are reasonably acceptable to the Administrative Agent and the Required Lenders and shall be delivered by counsel of nationally recognized standing selected by the Borrower and satisfactory to the Administrative Agent and the Required Lenders. Such counsel shall be deemed to be satisfactory to the Administrative Agent and the Required Lenders unless, during the 15 day period after the entry thereof or with respect Agent has received written notice identifying such counsel, the Administrative Agent shall have objected to which execution has been stayed or such selection in writing to the payment of which is covered in full (subject to a customary deductible) by insuranceBorrower.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Applied Materials Inc /De)
Liens, Etc. Create Create, assume or suffer to exist, or permit exist any Lien upon any of its Subsidiaries to create property or suffer to exist, any Lien upon or with respect to any of its propertiesassets (other than Unrestricted Margin Stock), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries ; provided that this Section shall not apply to assign, any right to receive income, in each case to secure any indebtedness of any Person other than the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies taxes not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens that are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on GAAP;
(ii) other statutory, common law or contractual Liens incidental to the conduct of its books business or the ownership of its property and assets that (but only if such Liens A) were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and (B) do not, individually or not in the aggregate, result in a Materially Adverse Change aggregate materially detract from the value of its property or assets or materially adversely affect impair the rights use thereof in the operation of Bank); its business;
(viii) Liens incurred pledges or deposits in the ordinary course of business in connection with workmen's workers’ compensation, unemployment insurance or and other forms of governmental insurance or benefitssocial security legislation, or other than any Lien imposed by ERISA;
(iv) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, leases and contracts surety bonds (other than for borrowed money) entered into bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business business;
(v) Liens on property or assets to secured secure obligations on surety or appeal bonds; and owing to any member of the Consolidated Group;
(vi) judgment (A) purchase money Liens on fixed assets or for the deferred purchase price of property; provided that such Lien is limited to the purchase price and only attaches to the property being acquired and (B) capital leases;
(vii) easements, zoning restrictions or other minor defects or irregularities in existence less than 30 days title of real property not interfering in any material respect with the use of such property in the business of any member of the Consolidated Group;
(viii) Liens existing on the date of this Agreement and, to the extent securing obligations in excess of $25,000,000, set forth on Schedule 5.02(a) hereto;
(ix) any Lien granted to Agent, for the benefit of the Lenders;
(x) Liens on Receivables Related Assets of a Receivables Subsidiary in connection with the sale of such Receivables Related Assets pursuant to Section 5.02(f)(iii) hereof;
(xi) in addition to the Liens permitted herein, additional Liens, so long as the aggregate principal amount of all Debt and other obligations secured by such Liens, when taken together with, without duplication, the principal amount of all Debt of Subsidiaries that are not Guarantors incurred pursuant to Section 5.02(e)(viii) below, does not exceed an amount equal to 10% of the Consolidated Total Assets at the time such Debt or other obligation is created or incurred;
(xii) Permitted Encumbrances;
(xiii) any Lien existing on any property or asset prior to the acquisition thereof by any member of the Consolidated Group or existing on any property or assets of any Person at the time such Person becomes a Subsidiary after the entry thereof Closing Date; provided that (i) such Lien is not created in contemplation of or in connection with respect such acquisition or such Person becoming a Subsidiary, as the case may be, and (ii) such Lien does not apply to which execution has been stayed any other property or assets of any member of the payment Consolidated Group (other than Persons who become members of which is covered the Consolidated Group in full connection with such acquisition);
(xiv) Liens arising in connection with any margin posted related to Hedge Agreements entered other than for speculative purposes;
(xv) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clauses (vi), (viii), (xi) and (xiii) of this Section 5.02(a); provided that (x) the principal amount of the obligations secured thereby shall be limited to the principal amount of the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof), (y) such Lien shall be limited to all or a part of the assets that secured the obligation so extended, renewed or replaced and (z) in the case of any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (xi) of this Section 5.02(a) such extension, renewal or replacement (or successive renewals or replacements) shall utilize basket capacity under such clause (xi) prior to any excess amount not permitted thereunder being permitted under this clause (xv); and
(xvi) Liens on the products and proceeds (including, without limitation, insurance condemnation and eminent domain proceeds) of and accessions to, and contract or other rights (including rights under insurance policies and product warranties) derivative of or relating to, property subject to a customary deductible) by insuranceLiens under any of the paragraphs of this Section 5.02(a).
Appears in 1 contract
Samples: Credit Agreement (STERIS PLC)
Liens, Etc. Create or suffer to existThe Borrower will not, or and will not permit any of its Subsidiaries to create to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, except that the Borrower or any of its Subsidiaries may create, incur, assume, or suffer to exist Liens (“Permitted Liens”):
(a) Securing the Obligations;
(b) For taxes, assessments, governmental charges, or levies on Property of the Borrower or any Guarantor not yet due or that (provided foreclosure, sale or other similar proceedings shall not have been initiated) are being contested in each case good faith by appropriate proceedings, and such reserve as may be required by GAAP shall have been made therefor;
(c) In favor of bankers and/or financial institutions in respect of deposit accounts, other Liens imposed by law, such as landlords’, carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are being contested in good faith by appropriate proceedings, provided such reserve as may be required by GAAP shall have been made therefor;
(d) Arising in the ordinary course of business out of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower or any indebtedness Guarantor;
(e) Comprised of minor defects, irregularities, and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within the areas covered by the easements, leases, licenses and other rights in real property in favor of the Borrower or any Person of its Subsidiaries which, individually and in the aggregate, do not materially interfere with the ordinary conduct of Business, do not materially detract from the value or the use of the property which they affect, and could not reasonably have a Material Adverse Effect;
(f) Comprised of deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business;
(g) Created or arising after the date of this Agreement out of judgments or awards against the Borrower or any Guarantor and that (i) Liens in favor do not give rise to an Event of Bank; Default and (ii) Liens reflected on SCHEDULE 6.2(Cwith respect to which the Borrower or any Guarantor at the time shall be properly and timely prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review;
(h) hereto; (iii) Constituting purchase money Liens or security interests created or arising after the date of this Agreement upon or in any personal property Property acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business to secure the purchase price of such property Property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in such Property; provided that (A) the aggregate principal amount of the indebtedness secured by the Liens permitted by this paragraph (i) shall not exceed $20,000,000, (B) no such Lien may extend to or use of such property; cover any Property other than the Property being acquired, and (ivC) Liens for taxes, assessments no such renewal or other governmental charges refinancing may extend to or levies cover any property not yet due previously subject to the Lien being renewed or thereafter payable without penalty, refinanced;
(i) (i) Assumed by Borrower or Liens its Subsidiaries in connection with an Acquisition and (ii) securing Capital Leases; provided that the aggregate amount of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any all Debt secured by such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or may not exceed $20,000,000 in the aggregate;
(j) In favor of Alon USA, result in a Materially Adverse Change LP (or materially adversely affect any assignee or successor thereto) securing certain obligations under the rights of Bank); (v) Alon Pipelines and Terminals Agreement, pursuant to the Alon Mortgage, so long as such Liens incurred are subordinated to the Liens on the same assets securing the Obligations on terms not less advantageous to the Administrative Agent and the Banks than those contained in the ordinary course Subordination, Non-Disturbance and Attornment Agreement executed by the Administrative Agent, the Alon Administrative Agent (as defined therein) and Alon USA, LP as of business in connection with workmen's compensationMarch 1, unemployment insurance 2005; and
(k) In favor of the Parent (or other forms any assignee or successor thereto that is an Affiliate of governmental insurance the Parent) securing certain obligations owing to the Parent (or benefitssuch Affiliate assignee or successor) and including without limitation obligations owing under the HC Pipelines Agreement, or so long as such Liens are subordinated to secure performance of statutory obligations, leases the Liens on the same assets securing the Obligations on terms not less advantageous to the Administrative Agent and contracts (other the Banks than for borrowed money) entered into those contained in the ordinary course Subordination, Non-Disturbance and Attornment Agreement executed by the Administrative Agent and the Parent as of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceJuly 8, 2005.
Appears in 1 contract
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and SECTION 10.17), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with SECTION 10.9 hereof and Section 1.18 of the Mortgages;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdue, yet due or any such Liens the payment of which is being diligently contested in good faith by appropriate proceedings compliance with SECTION 10.9 hereof and for which adequate reserves Section 1.18 of the Mortgages, in accordance with GAAP shall have been set aside on its books each case
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance or and other forms types of governmental insurance or benefitssocial security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(g) leases or subleases granted to others, easements, rightsofway, restrictions and contracts other similar charges or encumbrances, which, in each case either (other than for borrowed moneyi) are granted, entered into or created in the ordinary course of the business of the Company or any Restricted Subsidiary or (ii) do not materially impair the value or intended use, occupancy and operation of the property covered thereby;
(h) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to secured the Company or a WhollyOwned Restricted Subsidiary;
(i) Liens existing on the Assets at the time of the acquisition thereof by the Company and described in SCHEDULE 10.2;
(j) Liens created by any of the Security Documents securing Indebtedness evidenced by the Notes and the 1995 Notes or other Parity Debt incurred in accordance with SECTION 10.1(f) and 10.2(m) (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with SECTION 10.1(a) during the period prior to the date of the release or discharge of such Liens pursuant to SECTION 1.3;
(k) Liens created by any of the Security Documents securing Indebtedness incurred under the Acquisition Facility (or any extension, renewal, refunding, -39- 40 replacement or refinancing of any such Indebtedness) in accordance with SECTION 10.1(b) during the period prior to the date of the release or discharge of such Liens pursuant to SECTION 1.3;
(l) Liens created by any of the Security Documents securing Indebtedness or letter of credit obligations created under the Revolving Credit Facility (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with SECTION 10.1(e) during the period prior to the date of the release or discharge of such Liens pursuant to SECTION 1.3;
(m) Liens (other than the Liens referred to in clauses (j), (k) or (l) above) securing Indebtedness incurred in accordance with SECTION 10.1(b) or 10.1(e) or, to the extent incurred (i) to repay Indebtedness or letter of credit obligations incurred and outstanding under the Acquisition Facility or the Revolving Credit Facility (or any extension, renewal, refunding, replacement or refinancing of such Indebtedness), (ii) to finance the making of expenditures for the improvement or repair (to the extent such improvements and repairs may be capitalized on surety the books of the Company and the Restricted Subsidiaries in accordance with GAAP) of or appeal bonds; additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, or (iii) by assumption in connection with additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral under SECTION 10.1(f)(i) and (viii), provided that (1) judgment such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in existence less than 30 days after the entry property and assets subject to the Security Documents with the holders of the Notes and the other Indebtedness secured under the Security Documents, (2) in the case of Indebtedness incurred in accordance with SECTION 10.1(b) or 10.1(f)(i) and (ii) to finance the making of additions to the General Collateral, the Company has delivered to the Collateral Agent an Officers' Certificate demonstrating that the principal amount of such Indebtedness (net of transaction costs funded by the proceeds of such Indebtedness) does not exceed the lesser of the cost to the Company and the Restricted Subsidiaries of such additional property or assets and the fair market value of such additional property or assets at the time of the acquisition thereof or (as determined in good faith by the General Partner), and (3) the Company has delivered to the Collateral Agent an opinion of counsel reasonably satisfactory to the Collateral Agent with regard to the attachment and perfection of the Lien of the Security Documents with respect to such additional property and assets;
(n) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Company, or existing at the time of acquisition upon any property acquired by the Company or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Subsidiary, or created to secure Indebtedness incurred under SECTION 10.1(f) to pay all or any part of the purchase price (a "Purchase Money Lien") of property (including without limitation Capital Stock and other securities) acquired by the Company or a Restricted Subsidiary, provided that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other
(o) easements, exceptions or reservations in any property of the Company or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which execution has are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(p) Liens arising from or constituting Permitted Encumbrances;
(q) any Lien renewing or extending any Lien permitted by subdivision (h), (i), (m), (n), (r) or (s) of this SECTION 10.2, provided that (i) the principal amount of the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien (together with, in the case of Indebtedness permitted by SECTION 10.1(a), any accrued interest thereon and Make Whole Amount with respect thereto), and (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby;
(r) from and after the date of the discharge or release of the Liens created by the Security Documents pursuant to SECTION 1.3, any Lien on the Inventory and/or Receivables (as each such term is defined in the UCC) of the Company securing Indebtedness from time to time outstanding pursuant to the Revolving Credit Facility (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness); provided that the maximum amount of such Indebtedness secured by any Lien on such Inventory and/or Receivables does not exceed $100,000,000 (notwithstanding that the aggregate amount of Indebtedness outstanding under such Revolving Credit Facility may exceed $100,000,000); and
(s) from and after the date of the release or discharge of the Liens of the Security Documents pursuant to SECTION 1.3, any Lien created or incurred to secure Indebtedness of the Company or any Restricted Subsidiary, in addition to the Liens permitted by the preceding clauses (a) through (r) of this SECTION 10.2; provided that all Indebtedness secured by any such Lien shall have been stayed created or incurred pursuant to the payment of which is covered -41- 42 exceptions set forth in full (subject to a customary deductible) by insuranceSECTION 10.1 and within the limitations provided in SECTION 10.1(f)(iii).
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of such Liens do notBorrower or such Subsidiary, individually or in to secure the aggregate, result in a Materially Adverse Change or materially adversely affect the rights utility obligations of Bank); (v) Liens any such Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by such Borrower or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of such Borrower’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(x) Liens in favor of JPMorgan Chase Bank, N.A., as agent under the AEF Facility to secure the obligations of AEF or Parent under such agreement;
(xi) Liens incurred in connection with the sales of assets permitted in Section 5.2(d)(viii);
(xii) Liens incurred by such Borrower or any of its Subsidiaries on assets of such Borrower and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of Parent and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time;
(xiii) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xiv) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect such Borrower’s use of its properties;
(xv) Liens set forth in Schedule III hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto;
(xvi) Liens of a collection bank arising under Section 4 210 of the Uniform Commercial Code or similar Lien in any foreign jurisdiction on items in the course of collection and normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(xvii) other Liens securing obligations of such Borrower and its Subsidiaries not to exceed more than ten percent (10%) of the consolidated tangible assets (valued at book value) of such Borrower and its Subsidiaries at any time.
Appears in 1 contract
Samples: Master Credit Agreement (Wisconsin Power & Light Co)
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdue, overdue and which have been in existence less than ninety days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Borrower or such Liens do notSubsidiary, individually or in to secure the aggregate, result in a Materially Adverse Change or materially adversely affect the rights utility obligations of Bank); (v) Liens any such Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Borrower or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Borrower or any of its Subsidiaries shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Borrower’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insurance.insurance maintained with responsible insurance companies;
(vii) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary of the Parent to secure not more than $300,000,000 aggregate principal amount of Debt (inclusive of any such liens held by the Parent and IPL) of any Foreign Subsidiary of the Parent; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(viii) Liens incurred in connection with the sales of assets permitted in Section 5.2
Appears in 1 contract
Liens, Etc. Create or suffer to exist, any Lien, other charge or permit encumbrance, or any other type of its Subsidiaries to create or suffer to existpreferential arrangement, any Lien upon or with respect to any of its the Borrower's or Guarantor's properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case to secure any indebtedness or provide for the payment of any Person other than Debt of any Person, except for the following permitted Liens ("Permitted Liens"):
(i) Liens in favor of Bank; arising under this Agreement;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for current taxes, assessments or other governmental charges which are not delinquent or levies not yet due or thereafter remain payable without any penalty, or Liens the validity of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently which are contested in good faith by appropriate proceedings upon stay of execution of the enforcement thereof and for which adequate appropriate reserves in accordance with GAAP shall have been are set aside on its books therefor;
(but only if such Liens do notiii) deposits or pledges to secure:
(A) statutory obligations;
(B) surety or appeal bonds;
(C) bonds for release of attachment, individually stay of execution or injunction;
(D) performance of bids, tenders, contracts (other than for the repayment of Debt) or leases, or for purposes of like general nature in the aggregateordinary course of its business;
(iv) any Lien renewing, result in a Materially Adverse Change extending or materially adversely affect refunding any Lien existing on the rights of Bank); date hereof or permitted by clauses (i) through (iii) above, provided that the principal amount secured is not increased, and the Lien is not extended to other property;
(v) Liens incurred liens on tractors, trailers and other equipment purchased or leased by Borrower or Guarantor, provided, that such liens are created substantially simultaneously with the purchase or lease of such tractors, trailers and other equipment in the ordinary course of business in connection with workmen's compensationand such liens are confined solely to the tractors, unemployment insurance trailers and other equipment so purchased or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bondsleased; and or
(vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurancesuch liens as are specifically identified on Schedule 7.3(a)(v).
Appears in 1 contract
Samples: Loan and Security Agreement (Aasche Transportation Services Inc)
Liens, Etc. Create or suffer to exist, or permit any of its their Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following ("Permitted Liens"):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto; , and the renewal and replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due be required by Section 7.01(c) hereof;
(iv) Liens created by operation of law or thereafter payable without penaltyleases (other than Liens created under Environmental Laws), or Liens of carrierssuch as landlords' liens, warehousemenmaterialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into in the ordinary course of business and statutory obligations, or to secured (C) obligations on surety or appeal bonds; and (vi) judgment , but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.the
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign, assign or permit any of its Subsidiaries to assign, otherwise transfer any right to receive income, in each case to secure any indebtedness of any Person other than than:
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected With respect to Mountaineer, liens existing on SCHEDULE 6.2(C) the date hereof as set forth on Schedule VI to the Amended Loan Agreement, or, with respect to Speakeasy Reno or Speakeasy Vegas, liens existing on the date hereof, as set forth in Schedule VI hereto; , and the renewal and replacement of such liens, provided that any such renewal or replacement lien shall be limited to the property or assets covered by the lien renewed or replaced and the indebtedness secured by any such renewal or replacement lien shall be in an amount not greater than the amount of indebtedness secured by the lien renewed or replaced;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 8.01(b)(i) hereof;
(iv) Liens created by operation of law, or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 8.01(b)(ii) hereof;
(v) deposits, pledges or Liens (other than liens arising under ERISA) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens restrictions on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money or (B) materially impair the value of such property or its use by any Loan Party in full the normal conduct of such Loan Party's business;
(subject A) purchase money liens on or purchase money security interests in equipment acquired or held by any Borrower in the ordinary course of its business to a customary deductiblesecure the purchase price of such property or Indebtedness incurred solely for the purpose of financing the acquisition of such property, or (B) liens or security interests existing on such property at the time of its acquisition, PROVIDED, that (1) no such lien or security interests shall extend to cover any other property of the Borrowers, and (2) the principal amount of the Indebtedness secured by insuranceany such lien or security interest shall not exceed 100% of the lesser of the fair market value or the cost of the property so held or acquired; and
(viii) any other Lien in favor of the Lender.
Appears in 1 contract
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Facility Obligations in accordance with the provisions of rights in or use of such property; and Section 6.14), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 6.09;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 6.09, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance and other types of social security or other forms of governmental insurance or benefits, (ii) to secure (or to secure obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and contracts (other than for borrowed money) similar charges or encumbrances, which, in each case are granted, entered into or created in the ordinary course of the business of the Borrower or any Restricted Subsidiary and which do not interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to secured obligations on surety the Borrower or appeal bonds; any other Restricted Subsidiary;
(g) Liens created by any of the Collateral Documents;
(h) Liens created by any of the Collateral Documents securing Indebtedness incurred in accordance with Section 6.01(b), 6.01(g) or 6.01(i) (but only to the extent such Indebtedness under Section 6.01(i) is incurred to any Lender) or, to the extent incurred to finance the making of capital improvements, repairs and additions to the Borrower's Assets, Section 6.01(e) (but only to the extent such Liens comply with the requirements thereof), provided, that (i) such Liens are effected through an amendment to the Collateral Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Collateral Documents with the Secured Parties, (ii) the Collateral Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (iii) the Borrower has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to the Borrower of such property or assets and the fair market value of such property or assets (as determined in good faith by the General Partner) and to the effect that the amendments to the Collateral Documents required by this Section 6.02(h) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect and that such incurrence of Indebtedness pursuant to Section 6.01(b), 6.01(e), 6.01(g) or 6.01(i), as the case may be, complies in all respects with the requirements of such Section and (viiv) judgment Liens in existence less than 30 days after the entry thereof or Borrower has delivered to the Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Collateral Documents has attached and is perfected with respect to which execution has been stayed such additional property and assets;
(i) Liens existing on any property of a newly-acquired Restricted Subsidiary at the time of acquisition or existing prior to the payment time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by the Borrower or any Restricted Subsidiary; provided, that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is covered an improvement to or is acquired for specific use in full connection with such acquired property, (ii) such item or items of property so acquired (other than property (which may include stock or other equity interests) subject to Liens existing prior to the time of acquisition and not created in anticipation of such acquisition) are not required to become part of the Mortgaged Properties under the terms of the Collateral Documents, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to the Borrower or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the General Partner) at the time of such acquisition by the Borrower or such Restricted Subsidiary, and (iv) any such Lien shall not have been created or assumed in contemplation of such acquisition of a customary deductibleRestricted Subsidiary or property by the Borrower or any Restricted Subsidiary;
(j) Liens in amounts not exceeding $100,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(k) Liens arising from or constituting encumbrances or exceptions to title to the Assets expressly permitted by insurance.the Collateral Documents;
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Samples: Parity Debt Credit Agreement (Star Gas Partners Lp)
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien lien, security interest or other charge or encumbrance, or any other type of preferential arrange ment, upon or with respect to any of its properties, 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 any indebtedness of any Person other than than:
(i) Liens for taxes not yet due or which are being contested in favor of Bank; good faith by appropriate proceedings and with respect to which adequate reserves are being maintained;
(ii) Statutory liens of landlords and liens of carriers, warehousemen, mechanics, materialmen and other Liens reflected on SCHEDULE 6.2(C) hereto; imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained;
(iii) Liens (other than any lien imposed by ERISA) incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds 71 and other similar obligations (exclusive of obli gations for the payment of borrowed money);
(iv) Easements, rights-of-way, restrictions and other similar charges or encumbrances not interfering with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(v) Liens existing on any property prior to the acquisition thereof, or prior to the acquisition of the entity which owns such property, by the Borrower or any of its Subsidiaries, in each case which lien was not created in contemplation of such acquisition;
(A) Purchase money liens or purchase money Liens security interests upon or in any personal property acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in or use of such property; , (B) liens consisting of the interests of lessors under Capitalized Leases and (ivC) liens not otherwise described above in this Section 7.02(a); provided, that the aggregate capitalized amount of Debt incurred pursuant to such Capitalized Leases, plus the aggregate principal amount of the indebtedness or other obligations secured by any of the liens described in this clause (vi) (or, if greater, the book value of the assets that are subject to such liens) shall not exceed $20,000,000 at any time outstanding; and
(vii) Liens created in favor of the Agent, for taxesthe benefit of the Banks and the Issuing Banks, assessments as security for the obligations of the Borrower under or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensationthis Agreement, unemployment insurance or other forms of governmental insurance or benefitsincluding, or to secure performance of statutory obligationswithout limitation, leases and contracts (other than for borrowed money) entered into Liens created in the ordinary course of business manner contemplated in Section 7.02(e) or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceArticle VIII.
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Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following ("Permitted Liens"):
(i) Liens or security interests created pursuant to the Senior Loan Documents, and any extension of maturity, refinancing or modification of the terms thereof; provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Loan Parties than the terms of the Indebtedness created under the Senior Loan Documents and (B) after giving effect to the extension, refinancing or modification, the Borrower remains in favor of Bankcompliance with the covenants set forth in Section 6.02(n) hereof; and any Liens permitted under the Senior Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 6.02
(a) hereto; , but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(iii) purchase money Liens upon or in any personal property acquired or held created by Borrower or any Subsidiary operation of law (other than Environmental Liens, except to the extent permitted by Section 6.01(h) hereof), such as materialmen's liens, mechanics' liens and other similar Liens, arising in the ordinary course of business to secure and securing claims the purchase price payment of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and which shall not be required by Section 6.01(b) hereof;
(iv) Liens for taxesdeposits, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, pledges or Liens of carriers, warehousemen, mechanics, materialmen and landlords (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in the ordinary course respect of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(v) restrictions or to secured covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations on surety for the payment of money or appeal bonds; and (B) materially adversely impair the value or marketability of such property or its use by the Borrower or any Guarantor in the normal conduct of such Person's business, provided that in all such cases the Borrower or relevant Guarantor complies in all material respects with all of its obligations under such title restrictions or covenants;
(vi) judgment Liens securing Capitalized Leases permitted by Section 6.02(g);
(vii) Purchase money Liens on or purchase money security interests in existence less than 30 days after equipment securing Indebtedness permitted by Section 6.02(b)(v) and 6.02(h); and
(viii) Non-consensual Liens, but only if the entry thereof Borrower has posted a bond or with respect other financial assurance sufficient to which execution has been stayed or satisfy the payment of which is covered in full (subject to a customary deductible) Indebtedness secured by insurancesuch Lien.
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Liens, Etc. Create Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create create, incur, assume or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including capital stock of Consumers, Enterprises, CMS Oil & Gas Co. and any of the Borrower's other directly-owned Subsidiaries, and accounts) (any of the foregoing being referred to herein as a "LIEN"), whether now owned or hereafter acquired, or sign or file, or permit any of its Restricted Subsidiaries to sign or file, under the Uniform Commercial Code of any jurisdiction a financing statement which names the Borrower or any Restricted Subsidiary as debtor, sign, or permit any of its Restricted Subsidiaries to sign, any security agreement authorizing any secured party thereunder to file such financing statement, or assign, or permit any of its Restricted Subsidiaries to assign, any right to receive incomeaccounts, in each case to secure any indebtedness excluding, however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; for taxes, assessments or governmental charges or levies to the extent not past due;
(ii) Liens reflected on SCHEDULE 6.2(Ccash pledges or deposits to secure (A) heretoobligations under workmen's compensation laws or similar legislation, (B) public or statutory obligations of the Borrower or any of its Restricted Subsidiaries, or (C) Support Obligations of the Borrower; provided that the aggregate amount of pledges or deposits securing such Support Obligations shall not exceed $30 million at any one time outstanding;
(iii) Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's liens and other similar Liens arising in the ordinary course of business securing obligations which are not overdue or which have been fully bonded and are being contested in good faith; and
(iv) purchase money Liens or purchase money security interests upon or in any personal property acquired or held by the Borrower or any Subsidiary of its Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in any such property to be subject to such Liens or use security interests, or Liens or security interests existing on any such property at the time of acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such property; Lien or security interest shall extend to or cover any property other than the property being acquired and no such extension, renewal or replacement shall extend to or cover property not theretofore subject to the Lien or security interest being extended, renewed or replaced, and provided, further, that the aggregate principal amount of the Debt at any one time outstanding secured by Liens permitted by this clause (iv) Liens for taxes, assessments or other governmental charges or levies shall not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceexceed $10,000,000.
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Liens, Etc. Create or suffer to existIn the case of the Borrower and each of the Restricted Subsidiaries, create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on any property or with respect to assets (including stock or other securities of any of its propertiesPerson, whether including any Subsidiary) now owned or hereafter acquired, or assignassign or convey any rights to or security interests in any future revenue, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than except:
(i) Liens on property or assets of the Borrower and its Subsidiaries existing on the date hereof and (A) disclosed in favor the financial statements referred to in Section 4.01(e) or (B) securing Debt in an aggregate principal amount not in excess of Bank$50,000,000; provided that such Liens shall secure only those obligations which they secure on the date hereof;
(ii) Liens reflected any Lien existing on SCHEDULE 6.2(Cany property or asset prior to the acquisition thereof by the Borrower or any Subsidiary; provided that (A) hereto; such Lien is not created in contemplation of or in connection with such acquisition and (B) such Lien does not apply to any other property or assets of the Borrower or any Subsidiary;
(iii) purchase money carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens upon or in any personal property acquired or held by Borrower or any Subsidiary arising in the ordinary course of business and securing obligations that are not due or which are otherwise allowed in accordance with the provisions of Section 5.01(b);
(iv) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;
(v) deposits to secure the performance of bids, trade contracts (other than for Debt), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(vi) zoning restrictions, easements, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(vii) Liens upon any property acquired, constructed or improved by the Borrower or any Subsidiary that are created or incurred contemporaneously with acquisition, construction or improvement to secure or provide for the payment of any part of the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use cost of such propertyconstruction or improvement (but no other amounts); and provided that any such Lien shall not apply to any other property of the Borrower or any Subsidiary;
(ivviii) Liens for securing the payment of taxes, assessments or other and governmental charges or levies levies, either (A) not yet due delinquent or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves (B) permitted in accordance with GAAP shall have been set aside on its books Section 5.01(b);
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vix) Liens on the property or assets of any Subsidiary in favor of the Borrower or another Subsidiary;
(x) extensions, renewals and replacements of Liens referred to in subsections (b)(i) through (b)(ix) of this Section 5.02; provided 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 obligations secured by any such extension, renewal or replacement Lien shall be in an amount not greater than the amount of the obligations secured by the Lien extended, renewed or replaced;
(xi) Liens in connection with Debt permitted to be incurred pursuant to subsections (a) and (c) of this Section 5.02;
(xii) Liens in connection with Debt incurred in the ordinary course of business in connection with workmen's ’s compensation, unemployment insurance and other social security laws or regulations;
(xiii) any attachment or judgment Lien not in excess of $50,000,000 unless (A) enforcement proceedings shall have been commenced by any creditor upon such attachment or judgment or (B) there shall be any period of 45 consecutive days during which a stay of enforcement of such attachment or judgment, by reason of a pending appeal or otherwise, shall not be in effect;
(xiv) other Liens securing Debt in an aggregate principal amount not to exceed 1% of Consolidated Net Worth at any time outstanding; and
(xv) Liens arising in connection with rights of setoff that commercial banks and other financial institutions obtain against monies, securities or other forms properties of governmental insurance the Borrower and its Restricted Subsidiaries in possession of or benefitson deposit with such banks or financial institutions, whether in general or to secure performance of statutory obligationsspecial deposit accounts or held for safekeeping, leases transmission, collection or otherwise; and
(xvi) Liens on aircraft, airframes or aircraft engines, aeronautic equipment or computers and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceelectronic data processing equipment.
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Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (i"Permitted Liens"):
(a) Liens in favor of Bank; created pursuant to the Loan Documents:
(iib) Liens reflected existing on SCHEDULE 6.2(C) the date hereof, as set forth in Schedule 8.01 hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in , but not the ordinary course extension of business coverage thereof to secure the purchase price of such other property or to secure purchase money financing incurred solely for the purpose extension of financing maturity, refinancing or other modification of the acquisition terms thereof or of rights in or use of such property; and the Indebtedness secured thereby;
(ivc) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof and/or any of the Mortgages;
(d) Liens created by operation of law other than Environmental Liens, or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar liens, materialmen and landlords incurred arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than 60 days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such Liens do note) deposits, individually pledges or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); liens (vother than liens arising under ERISA) Liens securing (1) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(f) restrictions on the use of real property and minor irregularities in the title thereto which do not (1) secure obligations for the payment of money or (2) materially impair the value of such property or its use by the Borrower or any of its Subsidiaries in the normal conduct of such Person's business;
(g) Liens on property to secured obligations on surety be used by the Borrower in the ordinary course of its business, securing payment of all or appeal bonds; part of the purchase price thereof, and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to equipment leases which execution has been stayed or equipment is used by the payment Borrower in the ordinary course of which is covered its business, provided that the aggregate amount of Indebtedness at any one time outstanding incurred after the Filing Date and secured by such Liens shall not exceed $3,000,000, and further provided that such Liens are confined solely to the property so purchased, leased, improvements thereto and proceeds thereof;
(h) Liens securing Capitalized Leases permitted by Sections 8.07 and 8.08; and
(i) to the extent the same constitutes Liens, the interest of the cosigner in full (subject to a customary deductible) Inventory held by insurancethe Borrower on consignment.
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Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Obligations in accordance with the provisions of rights in or use of such property; and Section 7.12), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.5 hereof and Section 1.18 of the Mortgages;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is being contested in compliance with Section 7.5 hereof and Section 1.18 of the Mortgages, in each case (i) not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in favor of lessors under capital leases and leases of equipment in the ordinary course of business;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal or review, or shall not have been discharged within 60 days after expiration of any such Liens being diligently contested stay;
(g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in good faith by appropriate proceedings and for which adequate reserves each case either (i) are granted, entered into or created in accordance with GAAP shall have been set aside on its books the ordinary course of the business of the Borrower or any Restricted Subsidiary or (but only if such Liens ii) do not, individually or in the aggregate, result in present a Materially reasonable likelihood of having a Material Adverse Change or materially adversely affect the rights of Bank); Effect;
(vh) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of the type described in Section 8.1(c) of such Restricted Subsidiary owing to the Borrower or a Wholly-Owned Restricted Subsidiary;
(i) Liens created by any of the Security Documents securing the Indebtedness under this Agreement (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(a);
(j) Liens created by any of the Security Documents securing Indebtedness evidenced by the First Mortgage Notes (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(a);
(k) Liens created by any of the Security Documents securing the Indebtedness incurred under the Acquisition Commitment (as defined in the Existing Credit Agreement) (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(b);
(l) Liens created by any of the Security Documents securing the Indebtedness, or Letters of Credit (as defined in the Existing Credit Agreement), incurred under the Revolving Commitment (as defined in the Existing Credit Agreement) (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(e);
(m) Liens (other than the Liens referred to in clauses (i), (j), (k) or (l) above) securing Indebtedness represented by the First Mortgage Notes or other Indebtedness incurred in accordance with Section 8.1(b), 8.1(e) or 8.1(l) or, to the ordinary course extent incurred (i) to repay Indebtedness or letter of business credit obligations incurred and outstanding under the Acquisition Commitment or the Revolving Commitment (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness), (ii) to finance the making of expenditures for the improvement or repair (to the extent such improvements and repairs may be capitalized on the books of the Borrower and the Restricted Subsidiaries in accordance with GAAP) of or additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, or (iii) by assumption in connection with workmen's compensationadditions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, unemployment insurance under Section 8.1(f), provided, that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and the other Indebtedness secured under the Security Documents, (2) in the case of Indebtedness incurred in accordance with Section 8.1(b) or other forms Section 8.1(f) to finance the making of governmental insurance additions to the General Collateral, the Borrower has delivered to the Collateral Agent an Officers’ Certificate demonstrating that the principal amount of such Indebtedness (net of transaction costs funded by the proceeds of such Indebtedness) does not exceed the lesser of the cost to the Borrower and the Restricted Subsidiaries of such additional property or benefitsassets and the fair market value of such additional property or assets at the time of the acquisition thereof (as determined in good faith by the General Partner), and (3) the Borrower has delivered to the Collateral Agent an opinion of counsel reasonably satisfactory to the Collateral Agent with regard to the attachment and perfection of the Lien of the Security Documents with respect to such additional property and assets;
(n) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Borrower, or existing at the time of acquisition upon any property acquired by the Borrower or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Borrower or such Subsidiary, or created to secure performance Indebtedness incurred under Section 8.1(f) to pay all or any part of statutory obligationsthe purchase price (a “Purchase Money Lien”) of property (including without limitation Capital Stock and other securities) acquired by the Borrower or a Restricted Subsidiary, leases and contracts provided, that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other than property which is an improvement to or is acquired for borrowed moneyuse specifically in connection with such acquired property, (ii) entered into such item or items of property so acquired are not required to become part of the General Collateral under the terms of the Security Documents, (iii) in the ordinary course case of business or a Purchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to secured obligations on surety or appeal bonds; the lesser of (A) the cost to the Borrower and the Restricted Subsidiaries of such property and (viB) judgment Liens the fair market value of such property at the time of the acquisition thereof (as determined in existence less good faith by the General Partner), (iv) any such Purchase Money Lien shall be created not later than 30 days after the entry thereof acquisition of such property and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person’s becoming a Subsidiary of the Borrower or such acquisition of property by the Borrower or any Subsidiary;
(o) easements, exceptions or reservations in any property of the Borrower or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;
(p) Liens arising from or constituting Permitted Encumbrances as defined under the Security Documents; and
(q) any Lien renewing or extending any Lien permitted by subsection (h), (i), (j), (k), (l), (m) or (n) of this Section 8.3, provided, that (i) the principal amount of the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien (together with, in the case of Indebtedness permitted by Section 8.1(a), any accrued interest thereon and prepayment charges with respect thereto), and (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby. Notwithstanding anything in this Agreement to the contrary, until the AEPLP Security Date, other than Liens permitted by subsections (a), (b), (c), (d), (f), (g), (h), (o) and (to the extent that any such Lien extends or renews a Lien permitted by subsection (h) of this Section 8.3), (q) of this Section 8.3, the Borrower will not permit AEPLP or any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to which execution has been stayed any property or the payment asset (including any document or instrument in respect of which is covered in full (subject to a customary deductiblegoods or accounts receivable) by insuranceof AEPLP or such Subsidiary, whether such property or assets are now owned or held or hereafter acquired, or any income or profits therefrom.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien Lien, or any other type of preferential arrangement, upon or with respect to any of its properties, 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 any indebtedness Debt of any Person or entity, other than than:
(a) Liens securing the Loans hereunder and the obligations under the Term Loan Agreement;
(b) Liens securing the payment of taxes, assessments or governmental charges or levies or the demands of suppliers, mechanics, carriers, warehousers, landlords and other like Persons, provided that (i) they do not in the aggregate materially reduce the value of any properties subject to the Liens or materially interfere with their use in favor the ordinary conduct of Bank; the owning business, and (ii) all claims which the Liens reflected on SCHEDULE 6.2(Csecure are being actively contested in good faith and by appropriate proceedings;
(c) hereto; (iii) purchase money Liens upon incurred or in any personal property acquired or held by Borrower or any Subsidiary deposits made in the ordinary course of business (i) in connection with worker's compensation, unemployment insurance, social security and other like laws, or (ii) to secure the performance of letters of credit, bids, tenders, sales contract, leases, statutory obligations, surety, appeal and performance bonds and other similar obligations, in each case not incurred in connection with the borrowing of money, the obtaining of advances or the payment of the deferred purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights property;
(d) attachment, judgment and other similar Liens arising in or use of such property; connection with court proceedings provided that (i) execution and other enforcement are effectively stayed, and (ivii) all claims which the Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens secure are being diligently actively contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (ve) Liens incurred on property of a Subsidiary provided that they secure only obligations owing to the Borrower or another Subsidiary;
(f) Liens related to lease obligations, and within the limitations, described in the ordinary course of business Section 7.02;
(g) Liens against Customer Notes, which are created in connection with workmenthe sale, pledge or discounting of such customer notes, provided that immediately after giving effect thereto the Borrower's compensationaggregate liabilities on account of such Debt secured by such Liens does not exceed $6,000,000; and
(h) Liens against property leased pursuant to Capital Leases and Synthetic Lease Obligations, unemployment insurance provided that the aggregate amount of Debt secured by such Liens does not exceed $3,000,000.
(i) Liens not exceeding $500,000 in the aggregate against property other than inventory and receivables and Liens against receivables of HTT Xxxxxx Xxxxxx Xxxxxxxx XX and X. Xxxxxxxxxxxx & Co. AG.
(j) Liens securing certain credit facilities made available by JPMorgan Chase Bank to the Borrower for foreign exchange, letters of credit and Interest Rate Protection Agreements. For the purposes of this Agreement, the term "Lien" shall mean any interest in property securing any Debt or other forms of governmental insurance or benefitsobligation owed to, or to secure performance of statutory obligationsa claim by, leases and contracts (a Person other than the owner of the property, whether the interest is based on common law, statute or contract (including the security interest or lien arising from a mortgage, encumbrance, pledge, conditional sale or trust receipt or a lease, consignment or bailment for borrowed money) entered into in security purposes). The term "Lien" shall not include minor reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions and other minor title exceptions affecting property, provided that they do not constitute security for a monetary obligation. For the ordinary course purposes of business this Agreement, the Borrower or a Subsidiary shall be deemed to secured obligations on surety be the owner of any property which it has acquired or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (holds subject to a customary deductibleconditional sale agreement, Capital Lease and Synthetic Lease Obligations or other arrangement pursuant to which title to the property has been retained by or vested in some other Person for security purposes, and such retention or vesting shall be deemed to be a Lien. In connection with any sale, pledge or discounting of Borrower's or its Subsidiaries' Customer Notes, a "Lien" or "Liens" shall be deemed to exist to the extent of (i) by insurancethe amount of any sums withheld from the Borrower or any Subsidiary in any such transaction, plus (ii) the amount of any obligation of the Borrower or any Subsidiary resulting from the non-payment of any Customer Notes involved in any such transaction.
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a "LIEN"), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; for taxes, assessments or governmental charges or levies to the extent not past due;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's liens and other similar Liens arising in the ordinary course of business securing obligations which are not overdue or which are being contested in good faith, provided that any such contested Lien securing an amount claimed in excess of $5,000,000 shall be fully bonded within 90 days after the imposition of such Lien;
(iii) pledges or deposits to secure obligations under workmen's compensation laws or similar legislation, to secure public or statutory obligations of the Borrower or such Subsidiary, or to secure the utility obligations of any such Subsidiary incurred in the ordinary course of business;
(iv) (A) purchase money Liens upon or in any personal property now owned or hereafter acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Borrower or any of its Subsidiaries shall be deemed to be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or to secure purchase money financing (2) Debt incurred solely for the purpose of financing the acquisition acquisition, construction or improvement of rights in any such property to be subject to such Liens, or use (B) Liens existing on any such property at the time of acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property; , and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(ivv) Liens for taxessecuring Debt permitted by Section 5.02(b)(i)(B) or (C);
(vi) attachment, assessments judgment or other governmental charges similar Liens arising in connection with court proceedings, provided that the execution or levies not yet due or thereafter payable without penalty, or Liens other enforcement of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens is effectively stayed and the claims secured thereby are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens incurred in connection with the sales of assets permitted in subsection 5.02(f)(vii) of this Section;
(viii) Liens incurred by the Borrower or any of its Subsidiaries on assets of the Borrower and its Subsidiaries posted as collateral to secure Nonrecourse Debt or payments on contracts other than for borrowed money, in an aggregate principal amount not to exceed $100,000,000;
(ix) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel; and
(x) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the Borrower's use of its properties;
(xi) other Liens set forth in Schedule II hereto, and any extensions or renewals of any such Liens upon or in the same property theretofore subject thereto.
Appears in 1 contract
Liens, Etc. Create Neither Obligor will, nor will either Obligor permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of such Obligor or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and Section 10.17), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 10.9;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 10.9, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance or and other forms types of governmental insurance or benefitssocial security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of- way, restrictions and contracts (other than for borrowed money) similar charges or encumbrances, which, in each case, are granted, entered into or created in the ordinary course of the business of Star Gas or any Subsidiary and which do not interfere with the ordinary conduct of the business of Star Gas or any Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to Star Gas or any other Restricted Subsidiary;
(g) Liens existing on the Assets at the time of the acquisition thereof by Star Gas and described in Schedule 10.2;
(h) Liens created by any of the Security Documents;
(i) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(b) or, to the extent incurred to finance the making of capital improvements, repairs and additions to Star Gas's Assets, Section 10.1(f) (but only to the extent it complies with the requirements thereof), provided that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and of other Indebtedness secured obligations on surety under the Security Documents as provided in Section 10.1(b) or appeal bonds; 10.1(f), (2) the Security Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (3) Star Gas has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to Star Gas of such property or assets and the fair market value of such property or assets (as determined in good faith by the general partner of Star Gas), that such incurrence of Indebtedness pursuant to Section 10.1(b) or 10.1(f), as the case may be, complies in all respects with the requirements of such Section and that the amendments to the Security Documents required by this Section 10.2(i) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect, and (vi4) judgment Liens in existence less than 30 days after Star Gas has delivered to the entry thereof or Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Security Documents has attached and is perfected with respect to which execution has been stayed such additional property and assets;
(j) Liens existing on any property of any Person at the time it becomes a Restricted Subsidiary, or existing prior to the payment time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by Star Gas or any Restricted Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by Star Gas or such Restricted Subsidiary, or created to secure Indebtedness incurred under Section 10.1(f) to pay all or any part of the purchase price ("Purchase Money Lien") of property acquired by Star Gas or a Restricted Subsidiary, provided that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is covered an improvement to or is acquired for specific use in full connection with such acquired property, (ii) such item or items of property so acquired (other than property (which may include stock or other equity interests) subject to Liens existing prior to the time of acquisition and not created in anticipation of such acquisition) are not required to become part of the Mortgaged Property under the terms of the Security Documents, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to Star Gas or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the general partner of Star Gas) at the time such Person owning such property becomes a customary deductibleRestricted Subsidiary or at the time of such acquisition by Star Gas or such Restricted Subsidiary, as the case may be, (iv) any such Purchase Money Lien shall be created not later than 90 days after, in the case of property, its acquisition, or, in the case of improvements, their completion and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Restricted Subsidiary or such acquisition of property by insuranceStar Gas or any Subsidiary;
(k) Liens in amounts not exceeding $100,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(l) Liens arising from or constituting Permitted Encumbrances; and
(m) any Lien renewing, extending or refunding any Lien permitted by the foregoing subdivisions of this Section 10.2, provided that (i) the Indebtedness secured by any such Lien shall not exceed the amount of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien, (ii) no Assets encumbered by any such Lien other than the Assets encumbered immediately prior to such renewal, extension or refunding shall be encumbered thereby and (iii) the maturity date of the Indebtedness secured by any such Lien shall not be sooner than the maturity date of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien.
Appears in 1 contract
Liens, Etc. Create Create, assume or suffer to exist, or permit any of its Subsidiaries Material Subsidiary to create create, assume or suffer to exist, any Lien mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance, or any other type of preferential arrangement (each of the foregoing, a “Lien”), upon or with respect to any of its propertiesproperties or rights, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign as collateral any right to receive income, in each case services or property; provided, however, that the following shall be permitted to secure any indebtedness of any Person other than exist:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges not delinquent;
(ii) Liens for workmen’s compensation awards and similar obligations not delinquent;
(iii) Liens for taxes, assessments or levies not yet due governmental charges delinquent but the validity of which is being contested at the time in good faith by appropriate proceedings;
(iv) Liens existing upon any property acquired by such Person in the ordinary course of business (other than any such Lien created in contemplation of the acquisition of such property);
(v) Liens arising in connection with sales or thereafter payable without penaltytransfers of, or financings secured by, accounts receivable or related contracts;
(vi) Liens of carriers, warehousemen, mechanics, materialmen and landlords securing obligations incurred in the ordinary course of business for sums not overduein respect of any interest rate, currency or commodity swap or hedge or any other interest rate, currency or commodity risk protection arrangement;
(vii) Liens in respect of property of (A) the Borrower or any Material Subsidiary existing on the date hereof and described in Schedule 5.02 or (B) Southern Connecticut or Berkshire Gas under the FMB Indentures, as modified, supplemented or replaced from time to time; provided that, after giving effect to any modification, supplement or replacement of any such FMB Indenture, the collateral subject to such FMB Indenture and the restrictions on the issuance of First Mortgage Bonds thereunder remain substantially the same as provided in the applicable FMB Indenture, as in effect on the date hereof;
(viii) Liens in respect of property acquired or constructed by the Borrower or any Material Subsidiary after the date hereof that are created at the time of or within 120 days after acquisition or completion of construction of such property to secure Debt assumed or incurred to finance all or any part of the purchase price or cost of construction of such property, provided that in any such case (A) no such Lien shall extend to or cover any other property of such Person, and (B) the aggregate principal amount of Debt secured by all such Liens in respect of any such property shall not exceed the cost of such property and any improvements then being diligently financed;
(ix) extensions, renewals or replacements of any Liens permitted by clause (vii) above (including successive extensions, renewals and replacements), provided in each case that the principal amount of Debt (or the maximum commitment therefore) secured by any such Lien is not increased and such Lien does not extend to or cover any property other than the property covered by such Lien on the date of such extension, renewal or replacement;
(x) Liens created by or resulting from litigation or legal proceedings that are currently being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or not involve amounts that in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank)aggregate would exceed $10,000,000; and
(vxi) Liens incidental to the normal conduct of the business of the Borrower or any Material Subsidiary or the ownership of its property that are not incurred in the ordinary course of business in connection with workmen's compensationthe incurrence of Debt and that do not in the aggregate materially impair the use of such property in the operation of the business of the Borrower and its Subsidiaries, unemployment insurance or other forms of governmental insurance or benefitstaken as a whole, or to secure performance the value of statutory obligations, leases and contracts (other than such property for borrowed money) entered into in the ordinary course purposes of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurancesuch business.
Appears in 1 contract
Samples: Credit Agreement (Uil Holdings Corp)
Liens, Etc. Create or suffer to exist, or permit any of their Subsidiaries (other than Paramount and its Subsidiaries to and Subsidiaries of Alon Interests) to, create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries (other than Paramount and its Subsidiaries and Subsidiaries of Alon Interests) to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (each, a “Permitted Lien”):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.01(c) hereof;
(iii) Liens created by operation of law (other than Liens created under Environmental Laws), or Liens of carriers, warehousemensuch as materialmen’s liens, mechanics’ liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overduebe required by Section 7.01(c) hereof;
(iv) deposits, pledges or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such other than Liens do not, individually arising under ERISA or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Internal Revenue Code) securing (vA) Liens obligations incurred in the ordinary course respect of business in connection with workmen's workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(v) easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or to secured obligations on surety (B) materially impair the value of such property or appeal bonds; and materially impair the use thereof by any of the Companies or any of their Subsidiaries in the normal conduct of such Person’s business;
(vi) judgment Liens in created under the Term Loan Documents, subject to the provisions of this Agreement and the Intercreditor Agreement; provided, that such Liens shall secure only those obligations which they secure on the Effective Date and modifications, extensions, renewals and replacements thereof permitted under the Intercreditor Agreement and hereunder; and
(vii) so long as no Event of Default has occurred or is continuing or will result from the creation or existence less of any such Liens and such Liens do not encumber or otherwise cover any of the Collateral securing the Obligations hereunder and under the other Loan Documents (other than 30 days after the entry thereof or with respect to the License Agreement), other Liens (whether in one transaction or in a series of related transactions) (A) securing obligations, actual or contingent, in an aggregate amount not to exceed $25,000,000 at any time outstanding, or (B) securing obligations, actual or contingent, in an aggregate amount greater than $25,000,000, provided that prior to the creation or existence or incurrence of any such Lien the Borrowers deliver to the Agent a certificate of a Responsible Officer of the Administrative Borrower, certifying that (I) immediately before and after the creation or incurrence of any such Liens, no Event of Default has occurred or is continuing or will result from the creation or incurrence of any such Liens, (II) as of the last Fiscal Quarter for which execution has been stayed financial statements were delivered to the Lenders pursuant to Section 7.01(a)(i), on a pro forma basis after giving effect to such creation or incurrence of Indebtedness, Liens or other obligations as if it had occurred at the payment beginning of the most recent fiscal period of four Fiscal Quarters for which is covered such financial statements were delivered, Alon USA and its Consolidated Subsidiaries would be in full compliance with the covenants contained in Section 7.02(i) hereof (subject which certification shall set forth in reasonable detail the Borrowers’ calculations, shall be prepared both on a reasonable basis and in good faith and based on assumptions believed by the Borrowers to a customary deductiblebe reasonable at the time made), and (III) by insurancesuch Liens do not encumber the Collateral securing the Obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Liens, Etc. Create or suffer to existIn the case of the Borrower and each of the Restricted Subsidiaries, create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on any property or with respect to assets (including stock or other securities of any of its propertiesPerson, whether including any Subsidiary) now owned or hereafter acquired, or assignassign or convey any rights to or security interests in any future revenue, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than except:
(i) Liens on property or assets of the Borrower and its Subsidiaries existing on the date hereof and (A) disclosed in favor the financial statements referred to in Section 4.01(e) or (B) securing Debt in an aggregate principal amount not in excess of Bank$50,000,000; provided that such Liens shall secure only those obligations which they secure on the date hereof;
(ii) Liens reflected any Lien existing on SCHEDULE 6.2(Cany property or asset prior to the acquisition thereof by the Borrower or any Subsidiary; provided that (A) hereto; such Lien is not created in contemplation of or in connection with such acquisition and (B) such Lien does not apply to any other property or assets of the Borrower or any Subsidiary;
(iii) purchase money carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens upon or in any personal property acquired or held by Borrower or any Subsidiary arising in the ordinary course of business and securing obligations that are not due or which are otherwise allowed in accordance with the provisions of Section 5.01(b);
(iv) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;
(v) deposits to secure the performance of bids, trade contracts (other than for Debt), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(vi) zoning restrictions, easements, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(vii) Liens upon any property acquired, constructed or improved by the Borrower or any Subsidiary that are created or incurred contemporaneously with acquisition, construction or improvement to secure or provide for the payment of any part of the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use cost of such propertyconstruction or improvement (but no other amounts); and provided that any such Lien shall not apply to any other property of the Borrower or any Subsidiary;
(ivviii) Liens for securing the payment of taxes, assessments or other and governmental charges or levies levies, either (A) not yet due delinquent or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves (B) permitted in accordance with GAAP shall have been set aside on its books Section 5.01(b);
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vix) Liens on the property or assets of any Subsidiary in favor of the Borrower or another Subsidiary;
(x) extensions, renewals and replacements of Liens referred to in subsections (b)(i) through (b)(ix) of this Section 5.02; provided that any such extension, renewal or replacement Lien shall be limited to the property or assets covered by the Lie n extended, renewed or replaced and that the obligations secured by any such extension, renewal or replacement Lien shall be in an amount not greater than the amount of the obligations secured by the Lien extended, renewed or replaced;
(xi) Liens in connection with Debt permitted to be incurred pursuant to subsections (a) and (c) of this Section 5.02;
(xii) Liens in connection with Debt incurred in the ordinary course of business in connection with workmen's ’s compensation, unemployment insurance and other social security laws or regulations;
(xiii) any attachment or judgment Lien not in excess of $50,000,000 unless (A) enforcement proceedings shall have been commenced by any creditor upon such attachment or judgment or (B) there shall be any period of 45 consecutive days during which a stay of enforcement of such attachment or judgment, by reason of a pending appeal or otherwise, shall not be in effect;
(xiv) other Liens securing Debt in an aggregate principal amount not to exceed 1% of Consolidated Net Worth at any time outstanding;
(xv) Liens arising in connection with rights of setoff that commercial banks and other financial institutions obtain against monies, securities or other forms properties of governmental insurance the Borrower and its Restricted Subsidiaries in possession of or benefitson deposit with such banks or financial institutions, whether in general or to secure performance of statutory obligationsspecial deposit accounts or held for safekeeping, leases transmission, collection or otherwise; and
(xvi) Liens on aircraft, airframes or aircraft engines, aeronautic equipment or computers and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceelectronic data processing equipment.
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Liens, Etc. Create or suffer to exist, or permit any of its their Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assign, assign or permit any of its Subsidiaries to assign, otherwise transfer any right to receive income, in each case to secure any indebtedness of any Person other than the following Liens (ito the extent, with respect to the Borrowers, their Subsidiaries or any of their assets or properties (x) such Liens are created, incurred or assumed by any of them on or after the Filing Date, such Liens are approved and authorized by the Bankruptcy Court and (y) such Liens are created, incurred or assumed by any of them before the Filing Date, such Liens are valid, perfected and non-avoidable in accordance with applicable law) ("PERMITTED LIENS"):
(a) Liens in favor of Bank; created pursuant to the Loan Documents or the Interim Financing Order or the Final Financing Order;
(iib) Liens reflected existing on SCHEDULE 6.2(C) hereto; the date hereof, as set forth in Schedule 8.01;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (ivc) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law (other than Liens created under Environmental Laws), or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums which are not overduedue and payable or, if due and payable, which are stayed by the Bankruptcy Court or any such the Bankruptcy Code;
(e) deposits, pledges or Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such other than Liens do not, individually arising under ERISA or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Internal Revenue Code) securing (vA) Liens obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on surety or appeal bonds; the use of real property and (vi) judgment Liens minor irregularities in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.title thereto
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (American Architectural Products Corp)
Liens, Etc. Create or suffer to existThe Borrower will not, or and will not permit any of its Subsidiaries to create to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, except that the Borrower or any of its Subsidiaries may create, incur, assume, or suffer to exist Liens ("Permitted Liens"):
(a) Securing the Obligations;
(b) For taxes, assessments, governmental charges, or levies on Property of the Borrower or any Guarantor not yet due or that (provided foreclosure, sale or other similar proceedings shall not have been initiated) are being contested in each case good faith by appropriate proceedings, and such reserve as may be required by GAAP shall have been made therefor;
(c) In favor of bankers and/or financial institutions in respect of deposit accounts, other Liens imposed by law, such as landlords', carriers', warehousemen's and mechanics' liens and other similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are being contested in good faith by appropriate proceedings, provided such reserve as may be required by GAAP shall have been made therefor;
(d) Arising in the ordinary course of business out of pledges or deposits under workers' compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower or any indebtedness Guarantor;
(e) Comprised of minor defects, irregularities, and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within the areas covered by the easements, leases, licenses and other rights in real property in favor of the Borrower or any Person of its Subsidiaries which, individually and in the aggregate, do not materially interfere with the ordinary conduct of Business, do not materially detract from the value or the use of the property which they affect, and could not reasonably have a Material Adverse Effect;
(f) Comprised of deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business;
(g) Created or arising after the date of this Agreement out of judgments or awards against the Borrower or any Guarantor and that (i) Liens in favor do not give rise to an Event of Bank; Default and (ii) Liens reflected on SCHEDULE 6.2(Cwith respect to which the Borrower or any Guarantor at the time shall be properly and timely prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review;
(h) hereto; (iii) Constituting purchase money Liens or security interests created or arising after the date of this Agreement upon or in any personal property Property acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business to secure the purchase price of such property Property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in such Property; provided that (A) the aggregate principal amount of the indebtedness secured by the Liens permitted by this paragraph (i) shall not exceed $10,000,000, (B) no such Lien may extend to or use of such property; cover any Property other than the Property being acquired, and (ivC) Liens for taxes, assessments no such renewal or other governmental charges refinancing may extend to or levies cover any property not yet due previously subject to the Lien being renewed or thereafter payable without penalty, refinanced; and
(i) Assumed by Borrower or Liens its Subsidiaries in connection with an Acquisition and (ii) securing Capital Leases; provided that the aggregate amount of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any all Debt secured by such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or may not exceed $10,000,000 in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.
Appears in 1 contract
Liens, Etc. Create Create, incur or suffer to exist, or permit any of its Subsidiaries to create create, incur or suffer to exist, any Lien upon on or with respect to any of its properties, whether now owned or hereafter acquired, or assignupon any income or profits therefrom, or acquire or agree to acquire, or permit any of its Subsidiaries Subsidiary to assignacquire, any right to receive incomeproperty or assets upon conditional sales agreements or other title retention devices, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor for taxes and assessments or governmental charges or levies and Xxxxx securing claims or demands of Bank; mechanics and materialmen, provided that payment thereof is not at the time required by Section 5.01(a) or (b);
(ii) Liens reflected on SCHEDULE 6.2(Cany Lien of or resulting from any judgment or award; provided that either (A) hereto; the amount secured thereby does not exceed $200,000,000 or (B) if the amount secured thereby does exceed $200,000,000, the time for the appeal or petition for rehearing of such judgment or award shall not have expired, or the Borrower or a Subsidiary shall in good faith be prosecuting an appeal or proceeding for a review thereof, and execution of such judgment or award shall be stayed pending such appeal or proceeding for review;
(iii) purchase money Liens upon or in any personal property acquired or held incidental to the conduct of business conducted by the Borrower or any Subsidiary and its Subsidiaries in the ordinary course of business to secure or the purchase price ownership of properties and assets owned by the Borrower and its Subsidiaries (including (x) Liens in connection with worker’s compensation, unemployment insurance and other like laws, (y) warehousemen’s and attorneys’ liens and statutory landlords’ liens and (z) Liens consisting of any right of offset, or statutory or consensual banker’s lien, on bank deposits or securities accounts maintained in the ordinary course of business so long as such property bank deposits or to secure purchase money financing incurred solely securities accounts are not established or maintained for the purpose of financing providing such right of offset or banker’s lien) and Liens to secure the acquisition performance of rights in bids, tenders or use of such property; and (iv) Liens for taxestrade contracts, assessments or to secure statutory obligations, surety or appeal bonds or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords like general nature incurred in the ordinary course of business for sums of the Borrower and its Subsidiaries and not in connection with the borrowing of money, provided in each case, the obligation secured is not overdue or, if overdue, or any such Liens is being diligently contested in good faith by appropriate proceedings actions or proceedings;
(iv) survey exceptions or encumbrances, encroachments, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, zoning restrictions, declarations of covenants, conditions and restrictions, other title exceptions or other restrictions as to the use of real properties, which are necessary or appropriate in the good faith judgment of the Borrower for which adequate reserves in accordance with GAAP shall have been set aside on the conduct of the business of the Borrower and its books (but only if such Liens do notSubsidiaries and which, individually or in the aggregate, result do not in a Materially Adverse Change or any event materially adversely affect the rights of Bank); (v) Liens incurred impair their use in the ordinary course operation of the business in connection with workmen's compensation, unemployment insurance of the Borrower or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases the Borrower and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to its Subsidiaries taken as a customary deductible) by insurance.whole;
Appears in 1 contract
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Obligations in accordance with the provisions of rights in or use of such property; and Section 7.12), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.5 hereof and Section 1.18 of the Mortgages;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is being contested in compliance with Section 7.5 hereof and Section 1.18 of the Mortgages, in each case (i) not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in favor of lessors under capital leases and leases of equipment in the ordinary course of business;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal or review, or shall not have been discharged within 60 days after expiration of any such Liens being diligently contested stay;
(g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in good faith by appropriate proceedings and for which adequate reserves each case either (i) are granted, entered into or created in accordance with GAAP shall have been set aside on its books the ordinary course of the business of the Company or any Restricted Subsidiary or (but only if such Liens ii) do not, individually or in the aggregate, result in present a Materially reasonable likelihood of having a Material Adverse Change or materially adversely affect the rights of Bank); Effect;
(vh) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to the Company or a Wholly-Owned Restricted Subsidiary;
(i) [Intentionally omitted];
(j) Liens created by any of the Security Documents securing Indebtedness evidenced by the Mortgage Notes, the Series D First Mortgage Notes or the Series E First Mortgage Notes (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(a);
(k) Liens created by any of the Security Documents securing the Indebtedness incurred under the Acquisition Commitment (or any extension, renewal, refunding, replacement-or refinancing of any such Indebtedness) in accordance with Section 8.1(c);
(l) Liens created by any of the Security Documents securing the Indebtedness, or Letters of Credit, incurred under the Revolving Commitment (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(e);
(m) Liens (other than the Liens referred to in clauses (j), (k) or (l) above) securing Indebtedness represented by the Series D First Mortgage Notes, the Series E First Mortgage Notes or other Indebtedness incurred in accordance with Section 8.1(b), 8.1(e) or 8.1(l) or, to the ordinary course extent incurred (i) to repay Indebtedness or letter of business credit obligations incurred and outstanding under the Acquisition Commitment or the Revolving Commitment (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness), (ii) to finance the making of expenditures for the improvement or repair (to the extent such improvements and repairs may be capitalized on the books of the Company and the Restricted Subsidiaries in accordance with GAAP) of or additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, or (iii) by assumption in connection with workmen's compensationadditions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, unemployment insurance under Section 8.1(f), provided, that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and the other Indebtedness secured under the Security Documents, (2) in the case of Indebtedness incurred in accordance with Section 8.1(b) or other forms Section 8.1(f) to finance the making of governmental insurance additions to the General Collateral, the Company has delivered to the Collateral Agent an Officers' Certificate demonstrating that the principal amount of such Indebtedness (net of transaction costs funded by the proceeds of such Indebtedness) does not exceed the lesser of the cost to the Company and the Restricted Subsidiaries of such additional property or benefitsassets and the fair market value of such additional property or assets at the time of the acquisition thereof (as determined in good faith by the General Partner), and (3) the Company has delivered to the Collateral Agent an opinion of counsel reasonably satisfactory to the Collateral Agent with regard to the attachment and perfection of the Lien of the Security Documents with respect to such additional property and assets;
(n) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Company, or existing at the time of acquisition upon any property acquired by the Company or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Subsidiary, or created to secure performance Indebtedness incurred under Section 8.1(f) to pay all or any part of statutory obligationsthe purchase price (a "Purchase Money Lien") of property (including without limitation Capital Stock and other securities) acquired by the Company or a Restricted Subsidiary, leases and contracts provided, that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other than property which is an improvement to or is acquired for borrowed moneyuse specifically in connection with such acquired property, (ii) entered into such item or items of property so acquired are not required to become part of the General Collateral under the terms of the Security Documents, (iii) in the ordinary course case of business or a Purchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to secured obligations on surety or appeal bonds; the lesser of (A) the cost to the Company and the Restricted Subsidiaries of such property and (viB) judgment Liens the fair market value of such property at the time of the acquisition thereof (as determined in existence less good faith by the General Partner), (iv) any such Purchase Money Lien shall be created not later than 30 days after the entry thereof acquisition of such property and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Subsidiary of the Company or such acquisition of property by the Company or any Subsidiary;
(o) easements, exceptions or reservations in any property of the Company or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(p) Liens arising from or constituting Permitted Encumbrances as defined under the Security Documents; and
(q) any Lien renewing or extending any Lien permitted by subsection (h), (i), (j), (k), (l), (m) or (n) of this Section 8.3, provided, that (i) the principal amount of the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien (together with, in the case of Indebtedness permitted by Section 8.1(a), any accrued interest thereon and prepayment charges with respect thereto), and (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby. Notwithstanding anything in this Agreement to the contrary, until the AEPLP Security Date, other than Liens permitted by subsections (a), (b), (c), (d), (f), (g), (h), (o) and (to the extent that any such Lien extends or renews a Lien permitted by subsection (h) of this Section 8.3) (q) of this Section 8.3, the Company will not permit AEPLP or any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to which execution has been stayed any property or the payment asset (including any document or instrument in respect of which is covered in full (subject to a customary deductiblegoods or accounts receivable) by insuranceof AEPLP or such Subsidiary, whether such property or assets are now owned or held or hereafter acquired, or any income or profits therefrom.
Appears in 1 contract
Liens, Etc. Create The Borrower shall not create or suffer to exist, or ---------- and shall not permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its or such Subsidiary's properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, in each case except for:
(a) Liens created pursuant to secure any indebtedness the Collateral Documents;
(b) Any Lien securing the renewal, extension or refunding of any Person Indebtedness or other than obligation secured by any Lien permitted by subsections (ig) or (h) of this Section 7.1 without any increase in the amount secured thereby or in the assets subject to such Lien;
(c) Liens arising by operation of law in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon materialmen, mechanics, warehousemen, carriers, lessors or in any personal property acquired or held other similar Persons incurred by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business which secure its obligations to secure such Person; provided, however, that (i) the purchase price of Borrower -------- ------- or such property Subsidiary is not in default with respect to such payment obligation to such Person and (ii) the Borrower or to secure purchase money financing incurred solely such Subsidiary is in good faith and by appropriate proceedings diligently contesting such obligation and adequate provision is made for the purpose of financing the acquisition of rights in or use of such property; and payment thereof;
(ivd) Liens for (excluding Environmental Liens) securing taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penaltylevies; provided, or Liens however, that neither the Borrower -------- ------- nor any of carriers, warehousemen, mechanics, materialmen and landlords incurred its Subsidiaries is in the ordinary course default in respect of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance payment obligation with GAAP shall have been set aside on its books respect thereto;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (ve) Liens incurred or pledges and deposits made in the ordinary course of business in connection with workmen's workers' compensation, unemployment insurance insurance, old-age pensions and other social security benefits;
(f) Zoning restrictions, easements, licenses, reservations, restrictions on the use of real property or other forms minor irregularities incident thereto which do not in the aggregate materially detract from the value or use of governmental insurance the property or benefitsassets of the Borrower or any of its Subsidiaries or impair, in any material manner, the use of such property for the purposes for which such property is held by the Borrower or any such Subsidiary;
(g) Liens existing on the date of this Agreement and disclosed on Schedule 7.1;
(h) Liens to secure Capitalized Lease Obligations if the incurrence of such Indebtedness is permitted by Section 7.2(iv); provided, however, that: -------- ------- (i) any such Lien is created solely for the purpose of securing Indebtedness representing, or incurred to secure performance finance, refinance or refund, the cost (including, without limitation, the cost of statutory obligationsconstruction) of the property subject thereto, leases and contracts (ii) the principal amount of the Indebtedness secured by such Lien does not exceed 100% of such cost, (iii) such Lien does not extend to or cover any other property other than for borrowed moneysuch item of property and any improvements on such item and (iv) entered into the aggregate principal amount of Indebtedness of all of the Borrower secured by the Liens referred to in this clause (h) shall not exceed $50,000 in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceaggregate at any time outstanding.
Appears in 1 contract
Liens, Etc. Create Create, assume or suffer to exist, or permit exist any Lien upon any of its Subsidiaries to create property or suffer to exist, any Lien upon or with respect to any of its propertiesassets (other than Unrestricted Margin Stock), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries ; provided that this Section shall not apply to assign, any right to receive income, in each case to secure any indebtedness of any Person other than the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies taxes not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens that are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on GAAP;
(ii) other statutory, common law or contractual Liens incidental to the conduct of its books business or the ownership of its property and assets that (but only if such Liens A) were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and (B) do not, individually or not in the aggregate, result in a Materially Adverse Change aggregate materially detract from the value of its property or assets or materially adversely affect impair the rights use thereof in the operation of Bank); its business;
(viii) Liens incurred pledges or deposits in the ordinary course of business in connection with workmen's workers’ compensation, unemployment insurance or and other forms of governmental insurance or benefitssocial security legislation, or other than any Lien imposed by ERISA;
(iv) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, leases and contracts surety bonds (other than for borrowed money) entered into bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business business;
(v) Liens on property or assets to secured secure obligations on surety or appeal bonds; and owing to any member of the Consolidated Group;
(vi) judgment (A) purchase money Liens on fixed assets or for the deferred purchase price of property, provided that such Lien is limited to the purchase price and only attaches to the property being acquired and (B) capital leases;
(vii) easements, zoning restrictions or other minor defects or irregularities in existence less than 30 days after title of real property not interfering in any material respect with the entry thereof use of such property in the business of any member of the Consolidated Group;
(viii) Liens existing on the date of this Agreement and set forth on Schedule 5.02(a) hereto;
(ix) any Lien granted to Agent, for the benefit of the Lenders;
(x) Liens on Receivables Related Assets of a Receivables Subsidiary in connection with the sale of such Receivables Related Assets pursuant to Section 5.02(f)(iii) hereof; and
(xi) in addition to the Liens permitted above, additional Liens, so long as the aggregate principal amount of all Debt and other obligations secured by such Liens, when taken together with the principal amount of all Debt of Subsidiaries that are not Guarantors incurred pursuant to Section 5.02(e)(viii) below, does not exceed at an amount equal to 8.5% of the Consolidated Total Assets at time such Debt or such other obligation is created or incurred. Notwithstanding the foregoing, this Agreement shall not prohibit the Agent (as defined in the Existing STERIS Credit Agreement) or Lenders (as defined in the Existing STERIS Credit Agreement) under the Existing STERIS Credit Agreement from acquiring a security interest, mortgage or other Lien (as defined in the Existing STERIS Credit Agreement) on, or collateral assignment of, any of the property or assets of a Company (as defined in the Existing STERIS Credit Agreement); provided that the Existing Credit Agreement shall be terminated and any such lien released on or prior to the Closing Date in accordance with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceSection 5.01(m).
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following Liens (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by to the extent, with respect to the Borrower or any Subsidiary in of its assets or properties (x) if created, incurred or assumed by the ordinary course of business to secure Borrower on or after the purchase price of such property or to secure purchase money financing incurred solely for Filing Date are approved and authorized by the purpose of financing the acquisition of rights in or use of such property; Bankruptcy Court and (ivy) if created, incurred or assumed by the Borrower before the Filing Date and are valid, perfected and non-avoidable in accordance with applicable law)("Permitted Liens"):
(a) Liens created pursuant to the Loan Documents or the Interim Financing Order or the Final Financing Order;
(b) Liens existing on the date hereof, as set forth in Schedule 8.01 hereto;
(c) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law other than Environmental Liens, or Liens such as liens of materialmen, mechanics, carriers, warehousemen, mechanicssuppliers, materialmen and landlords incurred other similar liens, arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than thirty (30) days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such e) deposits, pledges or Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vother than Liens arising under ERISA) Liens securing (1) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) restrictions on surety or appeal bonds; the use of Real Estate and minor irregularities in the title thereto which (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or 1)do not secure obligations for the payment of money, other than those created pursuant to the Loan Documents or are permitted under clauses (b) and (j) of this Section 8.01 or (2) do not materially impair the value of such Real Estate or its use by the Borrower or any of its Subsidiaries in the normal conduct of such Person's business;
(g) purchase money Liens on or purchase money security interests in equipment or Real Estate acquired or held in the ordinary course of its business securing Indebtedness, provided that the Indebtedness secured by such Liens or security interests shall not exceed the aggregate principal amount of $100,000 per annum;
(h) Liens securing Capitalized Leases;
(i) [Intentionally left blank];
(j) Liens on Real Estate of the Borrower which secure Indebtedness incurred by the Borrower;
(k) [Intentionally left blank];
(l) Liens upon any property or assets of any Subsidiary of the Borrower existing at the time such Subsidiary is acquired by, merged into or consolidated with the Borrower in accordance with the terms of this Agreement, provided that such Liens were not created in contemplation of any such acquisition, merger or consolidation;
(m) pre-existing Liens upon any property or assets existing at the time such property or assets are acquired by the Borrower, provided that such Liens were not created in contemplation of such acquisition;
(n) Liens created pursuant to the Senior Notes Collateral Agreement;
(o) Liens of GPH; and
(p) renewals and replacements of the Liens described in clauses (b), (g), (l), (m) and (n) of this Section 8.01, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in full (subject to a customary deductible) an amount not greater than the amount of Indebtedness secured by insurancethe Lien renewed or replaced.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Golden Books Family Entertainment Inc)
Liens, Etc. Create Holdings and the Borrower shall not create, assume, incur, or suffer to exist, or and shall not permit any of its their respective Restricted Subsidiaries to create create, assume, incur, or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property (including any right to receive income) whether now owned or hereafter acquired, or assignexcept that each Loan Party and Restricted Subsidiary may create, incur, assume, or permit any of its Subsidiaries suffer to assignexist:
(a) Liens granted pursuant to the Security Instruments and securing the Obligations;
(b) Liens on equipment, any right to receive incomefixtures and other personal Property securing Indebtedness permitted under Section 6.02(c) [Indebtedness, in each case to secure any indebtedness of any Person other than Guarantees, and Other Obligations]; provided that (i) such Liens in favor shall be created substantially simultaneously with the acquisition, repair, improvement or lease, as applicable, of Bank; the related Property, (ii) such Liens reflected on SCHEDULE 6.2(C) hereto; do not at any time encumber any property other than the Property financed by such Indebtedness, (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course amount of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; Indebtedness secured thereby is not increased and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original price for the purchase, repair improvement or lease amount (as applicable) of such Property at the time of purchase, repair, improvement or lease (as applicable) together with any financing for interest thereon;
(c) Liens for taxesTaxes, assessments or and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due or thereafter payable without penaltyas to which the period of grace (not to exceed 90 days), if any, related thereto has not expired or Liens (ii) which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;
(d) the claims of materialmen, mechanics, carriers, warehousemen, mechanicsprocessors, materialmen and repairmen, suppliers, workers, or landlords for labor, materials, supplies, rentals or other like claims incurred in the ordinary course of business business, which (i) are not overdue for sums not a period of more than the longer of 90 days or the grace period therefor, or if overdue for more than such period, no action has been taken to enforce such Liens, (ii) to the extent overdue, or any such Liens are being diligently contested in good faith and by appropriate proceedings and for which if adequate reserves in accordance with are maintained to the extent required by GAAP shall have been set aside on its books or (but only if such Liens iii) do not, individually or in the aggregate, result materially impair the use thereof in a Materially Adverse Change the operation of the business of Holdings or materially adversely affect any of its Restricted Subsidiaries;
(e) royalties, overriding royalties, net profits interests, production payments, reversionary interests, calls on production, preferential purchase rights and other burdens on or deductions from the rights proceeds of Bank); production, that do not secure Indebtedness and that are taken into account in computing the net revenue interests and working interests of the Borrower or any of its Restricted Subsidiaries warranted in the Security Instruments or in this Agreement;
(vf) Liens incurred deposits or pledges of cash or cash equivalents made in the ordinary course of business in connection with workmen's with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or other forms of governmental insurance similar legislation, old age pension or benefitspublic liability obligations, or to secure performance of statutory obligations, leases regulatory obligations, surety and contracts appeal bonds (other than bonds related to judgments or litigation), government contracts, performance and return of money bonds, and bids and other obligations of a like nature incurred in the ordinary course of business, in each case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any portion of the Collateral on account thereof;
(g) Liens arising under operating agreements, unitization and pooling agreements and orders, farmout agreements, gas balancing or deferred production agreements, joint venture agreements, oil and gas partnership agreements, oil and gas leases, division orders, contracts for borrowed moneythe sale, transportation or exchange of oil and natural gas, area and mutual interest agreements, marketing agreements, processing agreements, net profit agreements, development agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or other geophysical permits or agreements, and other agreements, in each case, (i) that are customary in the oil, gas and mineral production business, and (ii) that are entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; provided that, in any event, (w) if such Liens could have the effect of reducing net revenue interests or increasing working interests of the Borrower without a corresponding increase in the net revenue interest in such Oil and Gas Property or any of its Restricted Subsidiaries from such values set forth in the most recently delivered Engineering Report, then the Borrower shall have provided to the Administrative Agent written notice of such Liens within 30 days of the incurrence of such Liens accompanied by a Responsible Officer’s certification and calculation of the adjusted net revenue interests and working interests after taking into account such Liens, (x) such Liens secure amounts that are not overdue or are being diligently contested in good faith by appropriate proceedings, if such reserve as may be required by GAAP shall have been made therefor, (y) such Liens are limited to the assets that are the subject of such agreements, and (z) such Liens shall not be in favor of any Person that is an Affiliate of a Loan Party (other than any other Loan Party);
(h) easements, servitudes, permits, conditions, covenants, exceptions, rights-of-way, zoning restrictions, and other similar encumbrances, and minor defects in the chain of title that are customarily accepted in the oil and gas financing industry, none of which interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary or materially detract from the value or use of the Property to which they apply;
(i) Liens arising from the filing of precautionary UCC financing statements relating solely to personal property leased pursuant to Operating Leases entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; of the Borrower and its Restricted Subsidiaries;
(i) Liens of a collecting bank arising in the ordinary course of business under Section 4- 210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (viii) judgment Liens of any depositary bank in existence less than 30 days after the entry thereof or connection with statutory, common law and contractual rights of set-off and recoupment with respect to any Deposit Account of the Borrower or any Restricted Subsidiary thereof;
(k) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets under any license or lease agreement entered into in the ordinary course of business which execution has been stayed do not (i) interfere in any material respect with the business of the Borrower or its Restricted Subsidiaries or materially detract from the value of the relevant assets of the Borrower or its Restricted Subsidiaries or (ii) secure any Indebtedness;
(l) Liens securing judgments for the payment of which is covered money not constituting an Event of Default;
(m) Liens on xxxx xxxxxxx money deposited pursuant to the terms of an agreement to acquire assets used in, or Persons engaged in, the oil and gas business, as permitted by this Agreement;
(n) licenses of intellectual property, none of which, in full the aggregate, interfere in any material respect with the business of the Borrower or its Restricted Subsidiaries or materially detract from the value of the relevant assets of the Borrower or its Restricted Subsidiaries;
(subject o) Liens on cash or cash equivalents in favor of any commercial bank to a customary deductiblesecure any and all obligations of any Loan Party, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with (i) commercial credit cards, (ii) stored value cards and (iii) any other Treasury Management Arrangement (including, without limitation, controlled disbursement, purchase card arrangements, automated clearinghouse transactions, return items, overdrafts and interstate depository network services);
(p) Liens securing First Lien Debt to the extent not prohibited by insurancethe Intercreditor Agreement;
(q) Liens under the First Lien Loan Documents securing obligations under Hedge Contracts entered into in compliance with Section 6.15 [Hedging Limitations];
(r) Liens on Equity Interests in Unrestricted Subsidiaries and joint ventures that are not Restricted Subsidiaries, and rights directly related to such Equity Interests;
(s) Liens securing Obligations under any intercompany Indebtedness arrangements entered into in compliance with this Agreement; and
(i) Liens not otherwise permitted under the preceding provisions of this Section 6.01 [Liens, Etc] encumbering Oil and Gas Properties and securing obligations in the aggregate outstanding principal amount not to exceed $1,000,000, and (ii) Liens not otherwise permitted under the preceding provisions of this Section 6.01 [Liens, Etc] encumbering Properties (other than Oil and Gas Properties) and securing obligations in the aggregate outstanding principal amount not to exceed $10,000,000; provided that, in each case, such Liens are not incurred in connection with any Indebtedness.
Appears in 1 contract
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and Section 10.16), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 10.9;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 10.9, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance or insurance, old age pension, retiree health benefits and other forms types of governmental insurance or benefitssocial security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, leases surety and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; , bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(vid) any attachment or judgment Liens in existence less than 30 Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, zoning restrictions, easements, licenses, reservations, rights-of-way, restrictions on the use of property or irregularities of title (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) and other similar charges or encumbrances, which do not materially interfere with the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to the Company or any other Restricted Subsidiary;
(g) Liens described in Schedule 10.2 of the 1996 Note Agreements or Schedule 10.2 of the 1998 Note Agreements as in effect on the date of this Agreement;
(h) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(a), Section 10.1(e) or Section 10.1(s);
(i) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(b), 10.1(f) or 10.1(m), PROVIDED that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and of other Indebtedness secured under the Security Documents as provided in Section 10.1(b), 10.1(f) or 10.1(m), (2) the Security Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (3) the Company has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to the Company of such property or assets and the fair market value of such property or assets (as determined in good faith by the Managing General Partner of the Company), that such incurrence of Indebtedness pursuant to Section 10.1(b), 10.1(f) or 10.1(m), as the case may be, complies in all respects with the requirements of such Section and that the amendments to the Security Documents required by this Section 10.2(i) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect, and (4) the Company has delivered to the Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Security Documents has attached and is perfected with respect to such additional property and assets;
(j) Liens existing on any property of any Person at the time it becomes a Restricted Subsidiary, or existing prior to the time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by the Company or any Restricted Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Restricted Subsidiary, or created to secure Indebtedness incurred under Section 10.1(f) to pay all or any part of the purchase price ("Purchase Money Lien") of property acquired by the Company or a Restricted Subsidiary or to pay the cost of an improvement (other than improvements to property subject to the Lien of the Security Documents), PROVIDED that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for specific use in connection with such acquired property, (ii) such item or items of property so acquired (other than property (which may include stock or other equity interests) subject to Liens existing prior to the time of acquisition and not created in anticipation of such acquisition) are not required to become part of the Collateral under the terms of the Security Documents, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to the Company or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the Managing General Partner) at the time such Person owning such property becomes a Restricted Subsidiary or at the time of such acquisition by the Company or such Restricted Subsidiary, as the case may be, (iv) any such Purchase Money Lien shall be created not later than 90 days after, in the case of property, its acquisition, or, in the case of improvements, their completion and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Restricted Subsidiary or such acquisition of property by the Company or any Subsidiary;
(k) Liens in amounts not exceeding $500,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(l) Liens arising from or constituting Permitted Encumbrances;
(m) any Lien securing Indebtedness referred to in Section 10.1(i), (j) or (l) renewing or extending any Lien permitted by the foregoing subdivisions of this Section 10.2, PROVIDED that (i) the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding (including any exposure under letters of credit and any unfunded commitments) immediately prior to the renewal or extension of such Lien, (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby or with respect to which execution has been stayed any Indebtedness extending, renewing, refunding or refinancing any Indebtedness secured pursuant to the payment Security Documents, the assets specified therein and (iii) the maturity date of which is covered the Indebtedness secured by any such Lien shall not be sooner than the maturity date of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien;
(n) any Lien securing Indebtedness incurred in full accordance with Section 10.1(n), Section 10.1 (subject to a customary deductiblep), Section 10.1(q) by insuranceor Section 10.1(r);
(o) any Lien arising from the action of collecting banks; and
(p) those Liens described on Schedule 10.2.
Appears in 1 contract
Liens, Etc. Create On and after July 1, 1998 and so long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not, unless the Lenders shall otherwise consent in writing, create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, upon or with respect to any of its properties, 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 any indebtedness Debt of any Person Person, other than than:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens liens or purchase money security interests upon or in any personal property acquired or held by the Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights such property;
(ii) liens or security interests existing on such property at the time of its acquisition (other than any such lien or security interest created in or use contemplation of such property; and acquisition);
(iviii) Liens liens for taxes, assessments or other governmental and government charges or levies to the extent not yet due or thereafter payable without penaltyrequired to be paid under Section 5.01(b) hereof:
(iv) liens imposed by law, or Liens of carriers, warehousemensuch as materialmen's, mechanics', materialmen carriers', workmen's and landlords incurred repairmen's liens and other similar liens arising in the ordinary course of business securing obligations that are not overdue for sums a period of more than 30 days;
(v) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory obligations;
(vi) easements, rights of way and other encumbrances on title to real property that do not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in render title to the aggregate, result in a Materially Adverse Change property encumbered thereby unmarketable or materially adversely affect the rights use of Bank)such property for its present purposes; and
(vvii) Liens liens incurred or deposits made in the ordinary course of business to secure the performance of letters of credit, bids, tenders, sales contracts, leases, surety, appeal and performance bonds and other similar obligations not incurred in connection with workmen's compensation, unemployment insurance or other forms the borrowing of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.
Appears in 1 contract
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and SECTION 10.17), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with SECTION 10.9 hereof and Section 1.18 of the Mortgages;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdue, yet due or any such Liens the payment of which is being diligently contested in good faith by appropriate proceedings compliance with SECTION 10.9 hereof and for which adequate reserves Section 1.18 of the Mortgages, in accordance each case (i) not incurred or made in connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vii) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance securing the unpaid purchase price of property or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts services constituting current accounts payable;
(c) Liens (other than for borrowed moneyany Lien imposed by ERISA) entered into incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security, or (ii) to secure (or to secured obligations on obtain letters of credit that secure) the performance of tenders, statutory obligations, surety or and appeal bonds; , bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(vid) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Liens in existence less than 30 Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in each case either (i) are granted, entered into or created in the ordinary course of the business of the Company or any Restricted Subsidiary or (ii) do not materially impair the value or intended use, occupancy and operation of the property covered thereby;
(h) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to the Company or a Wholly-Owned Restricted Subsidiary;
(i) Liens existing on the Assets at the time of the acquisition thereof by the Company and described in SCHEDULE 10.2;
(j) Liens created by any of the Security Documents securing Indebtedness evidenced by the Notes, the 1999 Notes and the 1995 Notes or other Parity Debt incurred in accordance with SECTION 10.1(f) and 10.2(m) (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with SECTION 10.1(a) during the period prior to the date of the release or discharge of such Liens pursuant to SECTION 1.3;
(k) Liens created by any of the Security Documents securing Indebtedness incurred under the Acquisition Facility (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with SECTION 10.1(b) during the period prior to the date of the release or discharge of such Liens pursuant to SECTION 1.3;
(l) Liens created by any of the Security Documents securing Indebtedness or letter of credit obligations created under the Revolving Credit Facility (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with SECTION 10.1(e) during the period prior to the date of the release or discharge of such Liens pursuant to SECTION 1.3;
(m) Liens (other than the Liens referred to in clauses (j), (k) or (l) above) securing Indebtedness incurred in accordance with SECTION 10.1(b) or 10.1(e) or, to the extent incurred (i) to repay Indebtedness or letter of credit obligations incurred and outstanding under the Acquisition Facility or the Revolving Credit Facility (or any extension, renewal, refunding, replacement or refinancing of such Indebtedness), (ii) to finance the making of expenditures for the improvement or repair (to the extent such improvements and repairs may be capitalized on the books of the Company and the Restricted Subsidiaries in accordance with GAAP) of or additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, or (iii) by assumption in connection with additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, under SECTION 10.1(f)(i) and (ii), provided that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and the other Indebtedness secured under the Security Documents, (2) in the case of Indebtedness incurred in accordance with SECTION 10.1(b) or 10.1(f)(i) and (ii) to finance the making of additions to the General Collateral, the Company has delivered to the Collateral Agent an Officers' Certificate demonstrating that the principal amount of such Indebtedness (net of transaction costs funded by the proceeds of such Indebtedness) does not exceed the lesser of the cost to the Company and the Restricted Subsidiaries of such additional property or assets and the fair market value of such additional property or assets at the time of the acquisition thereof (as determined in good faith by the General Partner), and (3) the Company has delivered to the Collateral Agent an opinion of counsel reasonably satisfactory to the Collateral Agent with regard to the attachment and perfection of the Lien of the Security Documents with respect to which execution has been stayed such additional property and assets;
(n) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Company, or existing at the payment time of acquisition upon any property acquired by the Company or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Subsidiary, or created to secure Indebtedness incurred under SECTION 10.1(f) to pay all or any part of the purchase price (a "Purchase Money Lien") of property (including without limitation Capital Stock and other securities) acquired by the Company or a Restricted Subsidiary, provided that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other property which is covered an improvement to or is acquired for use specifically in full connection with such acquired property, (subject ii) such item or items of property so acquired are not required to become part of the General Collateral under the terms of the Security Documents, (iii) in the case of a customary deductiblePurchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company and the Restricted Subsidiaries of such property and (B) the fair market value of such property at the time of the acquisition thereof (as determined in good faith by insurance.the General Partner), (iv) any such Purchase Money Lien shall be created not later than 120 days after the acquisition of such property and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Subsidiary of the Company or such acquisition of property by the Company or any Subsidiary;
(o) easements, exceptions or reservations in any property of the Company or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(p) Liens arising from or constituting Permitted Encumbrances;
(q) any Lien renewing or extending any Lien permitted by subdivision (h), (i), (m), (n), (r) or (s) of this SECTION 10.2, provided that (i) the principal amount of the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien (together with, in the case of Indebtedness permitted by SECTION 10.1(a), any accrued interest thereon and Make Whole Amount with respect thereto), and (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby; 42 (r) from and after the date of the discharge or release of the Liens created by the Security Documents pursuant to SECTION 1.3, any Lien on the Inventory and/or Receivables (as each such term is defined in the UCC) of the Company securing Indebtedness from time to time outstanding pursuant to the Revolving Credit Facility (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness); provided that the maximum amount of such Indebtedness secured by any Lien on such Inventory and/or Receivables does not exceed $100,000,000 (notwithstanding that the aggregate amount of Indebtedness outstanding under such Revolving Credit Facility may exceed $100,000,000); and
Appears in 1 contract
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Facility Obligations in accordance with the provisions of rights in or use of such property; and Section 6.15), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 6.09;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 6.09, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance and other types of social security or other forms of governmental insurance or benefits, (ii) to secure (or to secure obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property ;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and contracts (other than for borrowed money) similar charges or encumbrances, which, in each case are granted, entered into or created in the ordinary course of the business of the Borrower or any Restricted Subsidiary and which do not interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to secured obligations on surety the Borrower or appeal bonds; any other Restricted Subsidiary;
(g) Liens created by any of the Collateral Documents;
(h) Liens created by any of the Collateral Documents securing Indebtedness incurred in accordance with Section 6.01(b), 6.01(i) or 6.01(k) (but only to the extent such Indebtedness under Section 6.01(k) is incurred to any Lender) or, to the extent incurred to finance the making of capital improvements, repairs and additions to the Borrower's Assets, Section 6.01(f) (but only to the extent such Liens comply with the requirements thereof), provided that (i) such Liens are effected through an amendment to the Collateral Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Collateral Documents with the Secured Parties, (ii) the Collateral Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (iii) the Borrower has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to the Borrower of such property or assets and the fair market value of such property or assets (as determined in good faith by the General Partner) and to the effect that the amendments to the Collateral Documents required by this Section 6.02(h) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect and that such incurrence of Indebtedness pursuant to Section 6.01(b), 6.01(i), 6.01(k) or 6.01(f), as the case may be, complies in all respects with the requirements of such Section and (viiv) judgment Liens in existence less than 30 days after the entry thereof or Borrower has delivered to the Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Collateral Documents has attached and is perfected with respect to which execution has been stayed such additional property and assets;
(i) Liens existing on any property of a newly-acquired Restricted Subsidiary at the time of acquisition or existing prior to the payment time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by the Borrower or any Restricted Subsidiary; provided that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is covered an improvement to or is acquired for specific use in full connection with such acquired property, (subject ii) the Indebtedness secured by any such Lien is permitted under Section 6.01(f) or (h) and, in the case of any such Indebtedness incurred under Section 6.01(f), the total principal amount thereof is no greater than the excess, if any, of such amount over the aggregate amount of the unused Revolving Credit Commitments on the date of incurrence thereof, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to the Borrower or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the General Partner) at the time of such acquisition by the Borrower or such Restricted Subsidiary, (iv) the aggregate principal amount of all Indebtedness secured by any such Liens shall at no time exceed $5,000,000 and (v) any such Lien shall not have been created or assumed in contemplation of such acquisition of a customary deductibleRestricted Subsidiary or property by the Borrower or any Restricted Subsidiary;
(j) Liens in amounts not exceeding $100,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(k) Liens arising from or constituting encumbrances or exceptions to title to the Assets expressly permitted by insurancethe Collateral Documents; and
(l) any Lien renewing, extending or refunding any Lien permitted by the foregoing paragraphs of this Section 6.02; provided that (i) the Indebtedness secured by any such Lien shall not exceed the amount of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien, (ii) no Assets encumbered by any such Lien other than the Assets encumbered immediately prior to such renewal, extension or refunding shall be encumbered thereby, (iii) the Indebtedness secured by any such Lien shall not mature prior to the stated maturity of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien and (iv) the Indebtedness secured by any such Lien shall have an Average Life equal to or greater than the remaining Average Life of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien.
Appears in 1 contract
Samples: Parity Debt Credit Agreement (Star Gas Partners Lp)
Liens, Etc. Create Create, incur, assume or suffer to exist, or permit any of its their Subsidiaries (other than the Excluded Subsidiaries) to create create, incur, assume or suffer to exist, directly or indirectly, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries (other than any Excluded Subsidiary) to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (each, a "Permitted Lien"):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.01(c) hereof;
(iii) Liens created by operation of law (other than Liens created under Environmental Laws), or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overduebe required by Section 7.01(c) hereof;
(iv) deposits, pledges or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such other than Liens do not, individually arising under ERISA or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Internal Revenue Code) securing (vA) Liens obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(v) easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or to secured obligations on surety (B) materially impair the value of such property or appeal bonds; and materially impair the use thereof by any of the Companies or any of their Subsidiaries in the normal conduct of such Person's business;
(vi) judgment Liens created under the Term Loan Documents, subject to the provisions of the Intercreditor Agreement; provided that (A) any such Liens shall secure the Drop Down Term Loans or any Permitted Refinancing thereof together with interest thereon and other obligations relating thereto not constituting indebtedness for borrowed money, (B) the aggregate principal amount of Indebtedness secured thereby shall not exceed $250,000,000 in respect of the Drop Down Term Loan Agreement less the aggregate amount of all repayments, prepayments, repurchases or redemptions, DOC ID - 18336046.11 whether optional or mandatory, in respect thereof), it being understood that the dollar limitation on Drop Down Term Loans, and any Permitted Refinancing thereof, set forth in clause (B) above shall decrease dollar for dollar upon any repayment, prepayment, repurchase or redemption, but no reduction shall occur in connection with any Permitted Refinancing thereof, and (C) any lien or security interest in favor of any Term Loan Agent in IDB Revolving Facility First Lien Collateral (as defined in the Intercreditor Agreement) shall be junior and subordinate to the lien and security interest of the Agent therein, and any such Term Loan Agent shall have become party to, and the applicable Term Loan Lenders shall be bound by, an Intercreditor Agreement (it being understood and agreed that notwithstanding anything in this Agreement to the contrary, in no event shall any Indebtedness of any Company that is not an MLP Party or any Excluded Subsidiary be secured by a Lien on any asset or property of any MLP Party); and
(vii) so long as no Event of Default has occurred or is continuing or will result from the creation or existence less of any such Liens and such Liens do not encumber or otherwise cover any of the Collateral securing the Obligations hereunder and under the other Loan Documents (other than 30 days after the entry thereof or with respect to the License Agreement), other Liens (whether in one transaction or in a series of related transactions) (A) securing obligations, actual or contingent, in an aggregate amount not to exceed $25,000,000 at any time outstanding, or (B) securing obligations, actual or contingent, in an aggregate amount greater than $25,000,000, provided that prior to the creation or existence or incurrence of any such Lien the Borrowers deliver to the Agent a certificate of a Responsible Officer of the Administrative Borrower, certifying that (I) immediately before and after the creation or incurrence of any such Liens, no Event of Default has occurred or is continuing or will result from the creation or incurrence of any such Liens, (II) as of the last Fiscal Quarter for which execution has been stayed financial statements were delivered to the Lenders pursuant to Section 7.01(a)(i), on a pro forma basis after giving effect to such creation or incurrence of Indebtedness, Liens or other obligations as if it had occurred at the payment beginning of the most recent fiscal period of four Fiscal Quarters for which is covered such financial statements were delivered, Alon USA and its Consolidated Subsidiaries would be in full compliance with the covenants contained in Section 7.02(i) hereof (subject which certification shall set forth in reasonable detail the Borrowers' calculations, shall be prepared both on a reasonable basis and in good faith and based on assumptions believed by the Borrowers to a customary deductiblebe reasonable at the time made), and (III) by insurancesuch Liens do not encumber the Collateral securing the Obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bankso required); 71
(viii) Liens pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of such Borrower or such Subsidiary, or to secure the utility obligations of any such Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by such Borrower or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of such Borrower’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(x) Liens incurred in connection with the sales of assets permitted in Section 5.2(d)(viii) and (ix); 72
(xi) Liens incurred by such Borrower or any of its Subsidiaries on assets of such Borrower and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of Parent and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time;
(xii) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xiii) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect such Borrower’s use of its properties;
(xiv) Liens set forth in Schedule III hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto;
(xv) Liens of a collection bank arising under Section 4 210 of the Uniform Commercial Code or similar Lien in any foreign jurisdiction on items in the course of collection and normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(xvi) other Liens securing obligations of such Borrower and its Subsidiaries not to exceed more than ten percent (10%) of the consolidated tangible assets (valued at book value) of such Borrower and its Subsidiaries at any time; and
(xvii) Liens on Eligible Project Assets of IPL or WPL financed through the Title XVII Clean Energy Financing Program; provided that no such Lien shall extend to or cover any property other than Eligible Project Assets of the applicable Borrower and proceeds of such property; provided that, for the avoidance of doubt, in no event shall any such lien extend to or cover any assets of any Borrower existing as of the Second Amendment Effective Date.
Appears in 1 contract
Samples: Five Year Master Credit Agreement (Wisconsin Power & Light Co)
Liens, Etc. Create Such Loan Party shall not create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(b) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(c) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Guarantor or any Subsidiary, or to secure the utility obligations of any such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens Subsidiary incurred in the ordinary course of business business;
(d) (i) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Guarantor or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to be in the ordinary course of business and consistent with present practices) to secure (A) the purchase price of such property or (B) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (ii) Liens existing on any such property at the time of acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(e) Liens on the capital stock of any of the Guarantor’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(f) attachment, judgment or other similar Liens arising in connection with court proceedings, provided that the execution or other enforcement of such Xxxxx is effectively stayed and the claims secured obligations on surety or appeal bonds; and (vi) judgment Liens thereby are being actively contested in existence less than 30 days after the entry thereof or with respect to which execution has been stayed good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(g) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(h) Liens created pursuant to the Mortgage Bond Indentures;
(i) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(j) Liens in favor of Xxxxx Fargo Bank, National Association (or any successor thereto), as agent under the Master Credit Facility to secure the obligations of the Guarantor or the respective Utilities thereunder;
(k) Liens incurred in connection with the sales of assets permitted in Section 7.4 (viii);
(l) Liens incurred by the Guarantor or any of its Subsidiaries on assets of the Guarantor and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of the Guarantor and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time
(m) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(n) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the Guarantor’s use of its properties;
(o) Liens set forth in Schedule 7.1 hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto;
(p) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code or similar Lien in any foreign jurisdiction on items in the course of collection and normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(q) other Liens securing obligations of the Guarantor and its Subsidiaries not to exceed more than ten percent (10%) of the consolidated tangible assets (valued at book value) of the Guarantor and its Subsidiaries at any time.
Appears in 1 contract
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and Section 10.16), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 10.9;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 10.9, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance or insurance, old age pension, retiree health benefits and other forms types of governmental insurance or benefitssocial security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, leases surety and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; , bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(vid) any attachment or judgment Liens in existence less than 30 Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, zoning restrictions, easements, licenses, reservations, rights-of-way, restrictions on the use of property or irregularities of title (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) and other similar charges or encumbrances, which do not materially interfere with the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to the Company or any other Restricted Subsidiary;
(g) Liens described in Schedule 10.2 of the 1996 Note Agreements;
(h) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(a), Section 10.1(e) or Section 10.1(s);
(i) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(b), 10.1(f) or 10.1(m), PROVIDED that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and of other Indebtedness secured under the Security Documents as
(j) Liens existing on any property of any Person at the time it becomes a Restricted Subsidiary, or existing prior to the time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by the Company or any Restricted Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Restricted Subsidiary, or created to secure Indebtedness incurred under Section 10.1(f) to pay all or any part of the purchase price ("Purchase Money Lien") of property acquired by the Company or a Restricted Subsidiary or to pay the cost of an improvement (other than improvements to property subject to the Lien of the Security Documents), PROVIDED that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for specific use in connection with such acquired property, (ii) such item or items of property so acquired (other than property (which may include stock or other equity interests) subject to Liens existing prior to the time of acquisition and not created in anticipation of such acquisition) are not required to become part of the Collateral under the terms of the Security Documents, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to the Company or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the Managing General Partner) at the time such Person owning such property becomes a Restricted Subsidiary or at the time of such acquisition by the Company or such Restricted Subsidiary, as the case may be, (iv) any such Purchase Money Lien shall be created not later than 90 days after, in the case of property, its acquisition, or, in the case of improvements, their completion and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Restricted Subsidiary or such acquisition of property by the Company or any Subsidiary;
(k) Liens in amounts not exceeding $500,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(l) Liens arising from or constituting Permitted Encumbrances;
(m) any Lien securing Indebtedness referred to in Section 10.1(i), (j) or (l) renewing or extending any Lien permitted by the foregoing subdivisions of this Section 10.2, PROVIDED that (i) the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding (including any exposure under letters of credit and any unfunded commitments) immediately prior to the renewal or extension of such Lien, (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby or with respect to which execution has been stayed any Indebtedness extending, renewing, refunding or refinancing any Indebtedness secured pursuant to the payment Security Documents, the assets specified therein and (iii) the maturity date of which is covered the Indebtedness secured by any such Lien shall not be sooner than the maturity date of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien;
(n) any Lien securing Indebtedness incurred in full accordance with Section 10.1(n), Section 10.1 (subject to a customary deductiblep), Section 10.1(q) by insuranceor Section 10.1(r);
(o) any Lien arising from the action of collecting banks; and
(p) those Liens described on Schedule 10.2.
Appears in 1 contract
Liens, Etc. Create The Credit Parties will not, nor will they permit any of their Restricted Subsidiaries to, directly or indirectly at any time create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any of its propertiestheir properties of any character (including, without limitation, Accounts) 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 any indebtedness of any Person other than except:
(i) Liens in favor of Bank; created by the Collateral Documents;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; Permitted Liens;
(iii) purchase money the Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in existing on the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; date hereof and described on Schedule 7.2(a);
(iv) Purchase Money Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Banksecuring capital leases permitted under Section 7.2(b)(xii); ;
(v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or cash deposits for bids and other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and obligations under contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and business;
(vi) judgment Liens the replacement, extension or renewal of any Lien permitted by clauses (iii), (iv) or (v) above upon or in existence less than 30 days after the entry thereof or with respect to which execution has been stayed same property theretofore subject thereto or the payment replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of which the Indebtedness secured thereby;
(vii) Liens granted by the Guarantor on the shares of stock of the Borrowers, any of their Restricted Subsidiaries or any other Restricted Subsidiary of the Guarantor and the proceeds thereof to secure the Senior Notes;
(viii) leases or subleases of real estate granted by a Credit Party to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of such Credit Party and cash security deposits made pursuant to real estate leases in customary amounts; and
(ix) if the Tape Acquisition is covered consummated in full (subject to a customary deductible) by insuranceaccordance with Section 7.2(f)(ix), Liens on assets of Tape Inc. securing Indebtedness permitted under Section 7.2(b)(xi).
Appears in 1 contract
Samples: Credit Agreement (Lynch Corp)
Liens, Etc. Create or suffer to exist, or permit any Significant Subsidiary of its Subsidiaries the Borrower (other than FES, AESC and their respective Subsidiaries) to create or suffer to exist, any Lien upon or with respect to any of its propertiesproperties (including, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assignwithout limitation, any right to receive incomeshares of any class of equity security of any Significant Subsidiary of the Borrower (other than FES, AESC and their respective Subsidiaries)), in each case to secure any indebtedness or provide for the payment of any Person Indebtedness, other than (i) Liens in favor liens consisting of Bank; (iiA) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon pledges or in any personal property acquired or held by Borrower or any Subsidiary deposits in the ordinary course of business to secure obligations under worker’s compensation laws or similar legislation, (B) deposits in the ordinary course of business to secure, or in lieu of, surety, appeal, or customs bonds to which the Borrower or Significant Subsidiary is a party, (C) pledges or deposits in the ordinary course of business to secure performance in connection with bids, tenders or contracts (other than contracts for the payment of money), or (D) materialmen’s, mechanics’, carriers’, workers’, repairmen’s or other like Liens incurred in the ordinary course of business for sums not yet due or currently being contested in good faith by appropriate proceedings diligently conducted, or deposits to obtain in the release of such Liens; (ii) purchase money liens or purchase money security interests upon or in any property acquired or held by the Borrower or Significant Subsidiary in the ordinary course of business, which secure the purchase price of such property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iii) Liens existing on property acquired by the Borrower or Significant Subsidiary or on the property of any Person at the time that such Person becomes a direct or indirect Significant Subsidiary of the Borrower or Significant Subsidiary or is merged into or consolidated with the Borrower or Significant Subsidiary; provided, in each case, that such Liens were not created to secure the acquisition of such Person; (iv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens in existence on the date of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank)this Agreement; (v) Liens incurred created by any First Mortgage Indenture, so long as under the terms thereof no “event of default” (howsoever designated) in respect of any bonds issued thereunder will be triggered by reference to an Event of Default or Unmatured Default; (vi) Liens securing Attributable Securitization Obligations on the ordinary course of business assets purported to be sold in connection with workmen's compensationthe applicable Permitted Securitization; (vii) Liens securing Nonrecourse Indebtedness; (viii) Liens on cash or cash equivalents deposited on behalf of or pledged to counterparties with respect to Permitted Obligations of the Borrower or any of its Significant Subsidiaries; (ix) Liens on cash or cash equivalents to defease Indebtedness of the Borrower or any of its Subsidiaries; (x) Liens on cash or cash equivalents constituting proceeds from a disposition of assets otherwise not prohibited under subsection (a) above, unemployment insurance which proceeds are deposited in escrow accounts for indemnification, adjustment of purchase price or similar obligations to the purchaser of such assets; (xi) Liens securing obligations in respect of pollution control or industrial revenue bonds or nuclear fuel leases, provided that such Liens extend to only the equipment, project, nuclear fuel or other forms assets financed with the proceeds of governmental insurance such financing; (xii) Liens arising in connection with leases that shall have been or benefitsshould be, in accordance with GAAP, recorded as capital leases in respect of which the Borrower or Significant Subsidiary is liable as lessee; provided, that no such Lien shall extend to secure performance or cover any assets of statutory obligations, leases and contracts (the Borrower or Significant Subsidiary other than for borrowed money) entered into in the ordinary course assets of business the Borrower or Significant Subsidiary subject to secured obligations on surety or appeal bondssuch lease and proceeds thereof; and (vixiii) judgment Liens created for the sole purpose of refinancing, extending, renewing or replacing in existence less than 30 days after whole or in part Indebtedness secured by any Lien referred to in the entry thereof foregoing clauses (i) through (xii); provided, however, that the principal amount of Indebtedness (or, if greater, the aggregate lending commitment) secured thereby shall not exceed the principal amount of Indebtedness (or, if greater, the aggregate lending commitment) so secured at the time of such refinancing, extension, renewal or with respect replacement, and that such refinancing, extension, renewal or replacement, as the case may be, shall be limited to which execution has been stayed all or a part of the payment of which is covered in full property or Indebtedness that secured the Lien so extended, renewed or replaced (subject to a customary deductible) by insuranceand any improvements on such property).
Appears in 1 contract
Samples: Term Loan Credit Agreement (FirstEnergy Solutions Corp.)
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, or assignany income or profits therefrom, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.4 hereof;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdue, yet due or any such Liens the payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves (i) not incurred or made in accordance connection with GAAP the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in favor of lessors under capital leases and leases of equipment in the ordinary course of business;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been set aside on its books discharged or execution thereof stayed pending appeal or review, or shall not have been discharged within 60 days after expiration of any such stay;
(but only if such Liens g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in each case either (i) are granted, entered into or created in the ordinary course of the business of the Borrower or any Restricted Subsidiary or (ii) do not, individually or in the aggregate, result in present a Materially reasonable likelihood of having a Material Adverse Change or materially adversely affect the rights of Bank); Effect;
(vh) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Borrower, or existing at the time of acquisition upon any property acquired by the Borrower or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Borrower or such Subsidiary, or created to secure Indebtedness incurred in under Section 8.1(f) to pay all or any part of the ordinary course purchase price (a “Purchase Money Lien”) of business property (including without limitation Capital Stock and other securities) acquired by the Borrower or a Restricted Subsidiary, provided, that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for use specifically in connection with workmen's compensationsuch acquired property, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed moneyii) entered into in the ordinary course case of business or a Purchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to secured obligations on surety or appeal bonds; the lesser of (A) the cost to the Borrower and the Restricted Subsidiaries of such property and (viB) judgment Liens the fair market value of such property at the time of the acquisition thereof (as determined in existence less good faith by the General Partner), (iii) any such Purchase Money Lien shall be created not later than 30 days after the entry thereof acquisition of such property and (iv) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person’s becoming a Subsidiary of the Borrower or such acquisition of property by the Borrower or any Subsidiary;
(i) Liens securing other obligations otherwise permitted under this Agreement, including, but not limited to, Capitalized Lease Obligations, which obligations secured by such Liens shall not exceed an amount equal to 3% of Consolidated Net Tangible Assets at such time;
(j) Liens securing the First Mortgage Notes that attach to the assets of the Borrower or any Restricted Subsidiary pursuant to Section 1.3 of either of the First Mortgage Note Agreements; provided, that at no time when such Liens exist, shall the Leverage Ratio exceed 2.00 to 1.00; and
(k) easements, exceptions or reservations in any property of the Borrower or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Borrower or any Restricted Subsidiary. Notwithstanding anything in this Agreement to the contrary, until the AEPLP Guaranty Date, other than Liens permitted by subsections (a), (b), (c), (d), (f), (g), (h) and (i) of this Section 8.3, the Borrower will not permit AEPLP or any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to which execution has been stayed any property or the payment asset (including any document or instrument in respect of which is covered in full (subject to a customary deductiblegoods or accounts receivable) by insuranceof AEPLP or such Subsidiary, whether such property or assets are now owned or held or hereafter acquired, or any income or profits therefrom.
Appears in 1 contract
Liens, Etc. Create or suffer to existCreate, or permit any of its Subsidiaries to create incur, assume or suffer to exist, any Lien Lien, upon or with respect to any of its properties, 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 any indebtedness of any Person other than except:
(i) Liens in favor of Bank; the Collateral Agent, for the benefit of itself, the Agent, the Lenders and the Senior Note Holders;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon for taxes or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental government charges or levies if not yet due and payable or thereafter if due and payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens if they are being diligently contested in good faith by appropriate proceedings and for which adequate appropriate reserves in accordance with GAAP shall have been set aside on its books are maintained;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (viii) Liens imposed by law, such as mechanics', materialmen's, landlords', warehousemen's, and carriers' Liens, and other similar Liens, securing obligations incurred in the ordinary course of business which are not past due or which are being contested in connection with workmen's good faith by appropriate proceedings and for which appropriate reserves have been established;
(iv) Liens under workers' compensation, unemployment insurance or other forms of governmental insurance or benefitsinsurance, Social Security, or similar legislation;
(v) Liens, deposits, or pledges to secure the performance of statutory obligationsbids, leases and tenders, contracts (other than contracts for borrowed the payment of money) entered into ), leases (permitted under the terms of this Agreement), public or statutory obligations, surety, stay, appeal, indemnity, performance or other similar bonds, or other similar obligations arising in the ordinary course of business or to secured obligations on surety or appeal bonds; and business;
(vi) judgment Liens described in existence Schedule 5.02(a), which Liens may be renewed, extended or refinanced, without securing any additional Debt and on terms no less favorable to the Borrower or applicable Guarantor than 30 days after the entry thereof original terms (except for the refinancing permitted by clause (xi) below, which may be on the terms set forth therein);
(vii) Judgment and other similar Liens arising in connection with court proceedings (other than those described in Section 6.01(f)), provided the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings;
(viii) Easements, rights-of-way, restrictions, and other similar encumbrances which, in the aggregate, do not materially interfere with respect to the Borrower's or a Guarantor's occupation, use and enjoyment of the property or assets encumbered thereby in the normal course of its business or materially impair the value of the property subject thereto;
(ix) The Canadian Bridge Loan Mortgages, provided that such mortgages shall be satisfied when the Canadian Bridge Loan is repaid;
(x) The Canadian Mortgage;
(xi) The North Carolina Mortgage which execution has been stayed may be refinanced in accordance with Section 5.01(m) of this Agreement; and
(xii) Purchase money Liens on any property hereafter acquired or the payment assumption of which is covered any Lien on property existing at the time of such acquisition, or a Lien incurred in full connection with any conditional sale or other title retention agreement or a Capital Lease, provided that:
(1) Any property subject to any of the foregoing is acquired by the Borrower or a customary deductibleGuarantor in the ordinary course of its respective business and the Lien on any such property is created contemporaneously with such acquisition;
(2) The obligation secured by insuranceany Lien so created, assumed, or existing shall not exceed one hundred (100%) percent of lesser of cost or fair market value of the property acquired as of the time of the Borrower or the Guarantor acquiring the same;
(3) Each such Lien shall attach only to the property so acquired and fixed improvements thereon; and
(4) The obligation secured by such Lien is permitted by the provisions of Section 5.02(b) and the related expenditure is permitted by the provisions of Section 5.03(b).
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its their Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than than:
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto; , and the renewal and replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due be required by Section 7.01(c) hereof;
(iv) Liens created by operation of law (other than Liens created under ERISA or thereafter payable without penaltyEnvironmental Laws), or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money or (B) materially impair the value of such property or materially impair the use thereof by the Borrowers, the Guarantors or any of their Subsidiaries in full the normal conduct of such Person's business;
(subject vii) Liens created under the Factoring Agreements;
(viii) to a customary deductible) the extent permitted by insuranceSection 7.02(g), purchase money liens on or purchase money security interests in equipment acquired or held in the ordinary course of business of the Borrowers, the Guarantors and their Subsidiaries securing Indebtedness not exceeding in any Fiscal Year of the Company the aggregate principal amount of $3,000,000 for the Borrowers, the Guarantors and their Subsidiaries.
Appears in 1 contract
Liens, Etc. Create The Parent Guarantor shall not, directly or indirectly, create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its propertiesProperties, 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 any indebtedness or provide for the payment of any Person other than Indebtedness of any Person, except the following (collectively, "Permitted Liens").
(i) Liens in favor of Bank; created by the Loan Documents;
(ii) Liens reflected listed on SCHEDULE 6.2(CSchedule 7(a)(ii) hereto; ;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxessecuring a tax, assessments assessment or other governmental charges charge or levies not yet due levy or thereafter payable without penaltythe claim of a materialman, mechanic, carrier, warehouseman or Liens of carrierslandlord for labor, warehousemenmaterials, mechanicssupplies or rentals and any other statutory lien (other than Environmental Liens), materialmen and landlords but only if (A) such Lien was incurred in the ordinary course of business for sums and (B) the liability secured by such Lien (1) is not overdue, delinquent or any such Liens (2) is being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall or other appropriate provisions have been set aside on its books provided therefor in an amount not less than the amount required by GAAP;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (viv) Liens incurred consisting of a deposit or pledge made in the ordinary course of business in connection with workmenwith, or to secure payment of, obligations under worker's compensation, unemployment insurance or other forms similar legislation;
(v) Liens constituting an encumbrance in the nature of governmental insurance zoning restrictions, easements and rights or benefitsrestrictions of record on the use of real property that does not have a materially adverse effect on the Parent Guarantor or its Subsidiaries;
(vi) Liens of landlords or of mortgagees of landlords arising by operation of law or pursuant to the terms of real property leases, provided that the rental payments secured thereby are not yet due and payable;
(vii) Any interest or title of a lessor under any lease entered into by the Parent Guarantor or any of its Subsidiaries in the ordinary course of its business and covering only the assets so leased;
(viii) Liens to secure the performance of statutory obligationsbids, leases and trade contracts (other than for borrowed money) entered into ), obligations for utilities leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business or to secured obligations on surety or appeal bonds; and business;
(viix) judgment or other similar Liens arising in existence less connection with legal proceedings, provided that there shall be no period of more than 30 15 consecutive days after during which a stay of enforcement of the entry thereof or with respect to which execution has been stayed or the payment of which is covered related judgment shall not be in full (subject to a customary deductible) by insurance.effect
Appears in 1 contract
Samples: Guaranty (Alpharma Inc)
Liens, Etc. Create or suffer to exist, or permit any of its their respective Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (i"Permitted Liens"):
(a) Liens in favor of Bank; created pursuant to the Loan Documents;
(iib) Liens reflected existing on SCHEDULE 6.2(C) the date hereof, as set forth in Schedule 8.01 hereto; ;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (ivc) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law other than Environmental Liens, or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar liens, materialmen and landlords incurred arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than 60 days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such e) deposits, pledges or Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vother than Liens arising under ERISA) Liens securing (1) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) restrictions on surety or appeal bonds; the use of real property and minor irregularities in the title thereto which do not (vi1) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or secure obligations for the payment of money or (2) materially impair the value of such property or its use by a Borrower or any of its Subsidiaries in the normal conduct of such Person's business;
(g) purchase money Liens on or purchase money security interests in equipment or real property acquired or held in the ordinary course of its business securing Indebtedness, provided that the Indebtedness secured by such Liens or security interests shall not exceed the aggregate principal amount of (1) $75,000,000 from the Closing Date through the first anniversary thereof, (2) an additional $45,000,000 from the first anniversary of the Closing Date through the second anniversary thereof and (3) an additional $45,000,000 from the second anniversary of the Closing Date through the Termination Date;
(h) Liens securing Capitalized Leases;
(i) to the extent the same constitutes Liens, the interest of the consignor in Inventory held by a Borrower on consignment;
(j) Liens on real property of the Borrowers which secure Indebtedness incurred by the Borrowers; provided that (1) after giving effect to the creation of any such Liens and any Sale Lease Back Transaction entered into by a Borrower pursuant to the terms of clause (v) of Section 8.04(b) hereof, the Borrowers own real property with an aggregate book value of not less than $50,000,000 that is free and clear of all Liens other than the Liens described in clauses (c) and (f) of this Section 8.01 and (2) the proceeds of the Indebtedness secured by such Liens are used for working capital purposes or general corporate purposes, in each case which purposes are not otherwise prohibited by the terms of this Agreement;
(k) Liens on the cash surrender value of life insurance policies owned by a Borrower, provided that the proceeds of the Indebtedness secured by such Liens are used for working capital purposes or general corporate purposes, in each case which purposes are not otherwise prohibited by the terms of this Agreement;
(l) Liens upon any property or assets of any Subsidiary of a Borrower existing at the time such Subsidiary is acquired by, merged into or consolidated with a Borrower in accordance with the terms of this Agreement, provided that such Liens were not created in contemplation of any such acquisition, merger or consolidation;
(m) Liens upon any property or assets existing at the time such property or assets are acquired by a Borrower, provided that such Liens were not created in contemplation of such acquisition; and
(n) Renewals and replacements of the Liens described in clauses (b), (g), (k), (l) and (m) of this Section 8.01, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in full (subject to a customary deductible) an amount not greater than the amount of Indebtedness secured by insurancethe Lien renewed or replaced.
Appears in 1 contract
Liens, Etc. Create or suffer to existThe Borrower, or permit any of its the Parent and their respective Subsidiaries to create will not create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case except that the Borrower and its Subsidiaries may create, incur, assume or suffer to secure any indebtedness of any Person other than exist Liens:
(ia) Liens in favor of Bank; securing the Obligations;
(iib) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies on Property of the Borrower or any Guarantor to the extent not yet due or thereafter payable without penaltyrequired to be paid pursuant to Sections 5.03;
(c) imposed by law (such as landlords', or Liens of carriers', warehousemen, 's and mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, ' liens or any such Liens otherwise arising from litigation) (i) which are being diligently contested in good faith and by appropriate proceedings and for proceedings, (ii) with respect to which adequate reserves in accordance conformity with GAAP shall have been set aside on its books provided, (but only if iii) which have not resulted in any Collateral being in jeopardy of being sold, forfeited or lost during or as a result of such Liens do contest, (iv) neither the Administrative Agent nor any Lender could become subject to any civil fine or penalty or criminal fine or penalty, in each case, as a result of non-payment of such charge or claim and (v) such contest does not, individually or in the aggregateand could not reasonably be expected to, result in a Materially Material Adverse Change Change;
(d) on leased personal property to secure solely the lease obligations associated with such property;
(e) on the Property of or materially adversely affect Ownership Interests in a Permitted Other Subsidiary securing Indebtedness set forth in paragraph (b) of the rights definition of Bank); "Permitted Other Indebtedness" incurred by such Permitted Other Subsidiary to the extent such Indebtedness is permitted pursuant to the provisions of Section 6.02;
(vf) Liens on the Ownership Interests in an Unconsolidated Entity securing Permitted Non-Recourse Unconsolidated Entity Indebtedness incurred in by such Unconsolidated Entity;
(g) granted to the ordinary course owner of business a Hospitality Property subject to a Permitted Property Agreement on the accounts receivable, inventory, cash or other property owned by the Borrower or the Borrower's Subsidiary in connection with workmen's compensation, unemployment insurance such Hospitality Property;
(h) on the Collateral (or on other forms assets of governmental insurance or benefits, or the Parent and its Subsidiaries which are approved by the Administrative Agent as additional security for the Obligations) to secure performance Additional Designated Senior Indebtedness, PROVIDED that such Liens (i) also secure the Obligations on an equal and ratable basis with such Indebtedness, and (ii) if not already granted by the Security Documents, then are granted pursuant to documentation (including documentation granting Liens to secure the Obligations on an equal and ratable basis) reasonably acceptable to the Administrative Agent and the Borrower; and
(i) easements, rights of statutory obligationsway, leases covenants, restrictions, zoning and contracts (similar restrictions and other than for borrowed money) entered into in similar charges or encumbrances not interfering with the ordinary course conduct of the business of the Borrower or to secured obligations on surety or appeal bonds; its Subsidiaries and (vi) judgment Liens in existence less than 30 days after which do not detract materially from the entry thereof or with respect value of any of the Owned Hospitality Properties to which execution has been stayed they attach or impair materially the use thereof by the Borrower or the payment of which is covered in full (subject to a customary deductible) by insuranceBorrower's Subsidiaries.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Interstate Hotels & Resorts Inc)
Liens, Etc. Create The Borrower shall not create or suffer to exist, or ---------- and shall not permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its or such Subsidiary's properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive incomeincome therefrom, in each case except for the following and the Lender hereby consents to secure any indebtedness the following liens notwithstanding the provisions of any Person other than Negative Pledge Agreement:
(ia) Liens created pursuant to the Loan Documents;
(b) Liens arising by operation of law in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon materialmen, mechanics, warehousemen, carriers, lessors or in any personal property acquired or held other similar Persons incurred by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business which secure its obligations to secure such Person; provided, however, -------- ------- that (i) the purchase price of Borrower or such property Subsidiary is not in default with respect to such payment obligation to such Person, (ii) the Borrower or to secure purchase money financing incurred solely such Subsidiary is in good faith and by appropriate proceedings diligently contesting such obligation and adequate provision is made for the purpose of financing payment thereof, or (iii) all such failures in the acquisition of rights in or use of such property; and aggregate have no Material Adverse Effect;
(ivc) Liens for (excluding Environmental Liens) securing taxes, assessments or other governmental charges or levies not yet due levies; provided, however, that (i) neither the -------- ------- Borrower nor any of its Subsidiaries is in default in respect of any payment obligation with respect thereto unless the Borrower or thereafter payable without penaltysuch Subsidiary is in good faith and by appropriate proceedings diligently contesting such obligation and adequate provision is made for the payment thereof, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred (ii) all such failures in the ordinary course aggregate have no Material Adverse Effect;
(d) Zoning restrictions, easements, licenses, reservations, restrictions on the use of business real property or minor irregularities incident thereto which do not in the aggregate materially detract from the value or use of the property or assets of the Borrower or any of its Subsidiaries or impair, in any material manner, the use of such property for sums not overdue, the purposes for which such property is held by the Borrower or any such Subsidiary;
(e) Liens being diligently contested in good faith favor of landlords securing operating leases permitted by appropriate proceedings Section 8.3;
(f) Liens existing on the date of this Agreement and for which adequate reserves in accordance with GAAP shall have been set aside disclosed on its books Schedule 8.1;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vg) Liens incurred or deposits made in the ordinary course of business in connection with workmen's workers' compensation, unemployment insurance or and other forms types of governmental insurance or benefitssocial security, or to secure the performance of tenders, statutory obligations, leases surety and contracts appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (other than exclusive of obligations for the payment of borrowed money);
(h) entered into Any attachment or judgment Lien not constituting an Event of Default under Section 9.1(f);
(i) Any (i) interest or title of a lessor or sublessor under any Capitalized Lease or any operating lease not prohibited by this Agreement, (ii) restriction or encumbrance that the interest or title of such lessor or sublessor may be subject to, or (iii) subordination of the interest of the lessee or sublessee under such lease to any restriction or encumbrance referred to in the preceding clause (ii);
(j) Liens arising from filing UCC financing statements relating solely to leases permitted by this Agreement;
(k) Deposits in the ordinary course of business to secure liabilities to insurance carriers, lessors, utilities and other service providers;
(l) Purchase money security interests (including mortgages, conditional sales, Capitalized Leases and any other title retention or to secured obligations on surety deferred purchase devices) in personal property of the Borrower or appeal bonds; and (vi) judgment Liens any of its Subsidiaries in existence less than 30 days after an amount not exceeding $200,000 in respect of each Hotel Facility, existing or created at the entry time of acquisition thereof or with respect to which execution has been stayed within 60 days thereafter.
(m) Any Lien securing the renewal, extension or refunding of any Indebtedness or other Obligation secured by any Lien permitted by this Section 8.1 provided that such renewal, extension or refunding is otherwise permitted by this Agreement and the payment amount of which is covered in full (such Indebtedness or other Obligation secured by such Lien and the assets subject to a customary deductiblesuch Lien are not increased.
(n) by insuranceAny Lien securing Indebtedness permitted pursuant to Section 8.2(v).
Appears in 1 contract
Samples: Revolving Credit Agreement (Hospitality Properties Trust)
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien Lien, or any other type of preferential arrangement, upon or with respect to any of its properties, 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 any indebtedness Debt of any Person or entity, other than than:
(a) Liens securing the Loans hereunder and securing the obligations under the Credit Agreement;
(b) Liens securing the payment of taxes, assessments or governmental charges or levies or the demands of suppliers, mechanics, carriers, warehousers, landlords and other like Persons, provided that (i) they do not in the aggregate materially reduce the value of any properties subject to the Liens or materially interfere with their use in favor the ordinary conduct of Bank; the owning business, and (ii) all claims which the Liens reflected on SCHEDULE 6.2(Csecure are being actively contested in good faith and by appropriate proceedings;
(c) hereto; (iii) purchase money Liens upon incurred or in any personal property acquired or held by Borrower or any Subsidiary deposits made in the ordinary course of business (i) in connection with worker's compensation, unemployment insurance, social security and other like laws, or (ii) to secure the performance of letters of credit, bids, tenders, sales contract, leases, statutory obligations, surety, appeal and performance bonds and other similar obligations, in each case not incurred in connection with the borrowing of money, the obtaining of advances or the payment of the deferred purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights property;
(d) attachment, judgment and other similar Liens arising in or use of such property; connection with court proceedings provided that (i) execution and other enforcement are effectively stayed, and (ivii) all claims which the Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens secure are being diligently actively contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (ve) Liens incurred on property of a Subsidiary provided that they secure only obligations owing to the Borrower or another Subsidiary;
(f) Liens related to lease obligations, and within the limitations, described in the ordinary course of business Section 7.02;
(g) Liens against Customer Notes, which are created in connection with workmenthe sale, pledge or discounting of such Customer Notes, provided that immediately after giving effect thereto the Borrower's compensationaggregate liabilities on account of such Debt secured by such Liens does not exceed $6,000,000; and
(h) Liens against property leased pursuant to Capital Leases and Synthetic Lease Obligations, unemployment insurance or other forms provided that the aggregate amount of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts Debt secured by such Liens does not exceed $3,000,000.
(i) Liens not exceeding $500,000 in the aggregate against personal property other than inventory and receivables and Liens against receivables of HTT Xxxxxx Xxxxxx Xxxxxxxx XX and X. Xxxxxxxxxxxx & Co. A.G.
(j) Liens securing certain credit facilities made available by JPMorgan Chase Bank to the Borrower for borrowed money) entered into in the ordinary course foreign exchange, letters of business or to secured obligations on surety or appeal bonds; credit and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceInterest Rate Protection agreements.
Appears in 1 contract
Liens, Etc. Create Such Loan Party shall not create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(b) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(c) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Guarantor or any Subsidiary, or to secure the utility obligations of any such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens Subsidiary incurred in the ordinary course of business business;
(d) (i) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Guarantor or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to be in the ordinary course of business and consistent with present practices) to secure (A) the purchase price of such property or (B) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (ii) Liens existing on any such property at the time of acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(e) Liens on the capital stock of any of the Guarantor’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(f) attachment, judgment or other similar Liens arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured obligations on surety or appeal bonds; and (vi) judgment Liens thereby are being actively contested in existence less than 30 days after the entry thereof or with respect to which execution has been stayed good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(g) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(h) Liens created pursuant to the Mortgage Bond Indentures;
(i) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(j) Liens in favor of Xxxxx Fargo Bank, National Association (or any successor thereto), as agent under the Master Credit Facility to secure the obligations of the Guarantor or the respective Utilities thereunder;
(k) Liens incurred in connection with the sales of assets permitted in Section 7.4 (viii);
(l) Liens incurred by the Guarantor or any of its Subsidiaries on assets of the Guarantor and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of the Guarantor and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time
(m) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(n) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the Guarantor’s use of its properties;
(o) Liens set forth in Schedule 7.1 hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto;
(p) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code or similar Lien in any foreign jurisdiction on items in the course of collection and normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(q) other Liens securing obligations of the Guarantor and its Subsidiaries not to exceed more than ten percent (10%) of the consolidated tangible assets (valued at book value) of the Guarantor and its Subsidiaries at any time.
Appears in 1 contract
Liens, Etc. Create The Company will not, and will not permit any Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Subsidiary, whether now owned or held or hereafter acquired, or assignany income or profits therefrom, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 9.11;
(b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, mechanics and materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed yet due or the payment of which is covered not at the time required by Section 9.11;
(c) Liens (other than any Lien imposed by ERISA or the Code in full connection with a Plan) incurred or deposits made (subject i) in connection with workers' compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within sixty (60) days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within sixty (60) days after the expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to, and not interfering with, the ordinary conduct of the business of the Company or any Subsidiary; and
(f) Liens incurred to secure the Debt (other than subordinated Debt) of the Company outstanding in compliance with Section 9.2. For the purposes of this Section 9.4, any Person becoming a customary deductible) Subsidiary after the date of this Agreement shall be deemed to have incurred all of its then outstanding Liens at the time it becomes a Subsidiary, and any Person extending, renewing or refunding any Debt secured by insuranceany Lien shall be deemed to have incurred such Lien at the time of such extension, renewal or refunding.
Appears in 1 contract
Liens, Etc. Create Create, assume or suffer to exist, or permit exist any Lien upon any of its Subsidiaries to create property or suffer to exist, any Lien upon or with respect to any of its propertiesassets (other than Unrestricted Margin Stock), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries ; provided that this Section shall not apply to assign, any right to receive income, in each case to secure any indebtedness of any Person other than the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies taxes not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens that are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on GAAP;
(ii) other statutory, common law or contractual Liens incidental to the conduct of its books business or the ownership of its property and assets that (but only if such Liens A) were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and (B) do not, individually or not in the aggregate, result in a Materially Adverse Change aggregate materially detract from the value of its property or assets or materially adversely affect impair the rights use thereof in the operation of Bank); its business;
(viii) Liens incurred pledges or deposits in the ordinary course of business in connection with workmen's workers’ compensation, unemployment insurance or and other forms of governmental insurance or benefitssocial security legislation, or other than any Lien imposed by ERISA;
(iv) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, leases and contracts surety bonds (other than for borrowed money) entered into bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business business;
(v) Liens on property or assets to secured secure obligations on surety or appeal bonds; and owing to any member of the Consolidated Group;
(vi) judgment (A) purchase money Liens on fixed assets or for the deferred purchase price of property; provided that such Lien is limited to the purchase price and only attaches to the property being acquired and (B) capital leases;
(vii) easements, zoning restrictions or other minor defects or irregularities in existence less than 30 days title of real property not interfering in any material respect with the use of such property in the business of any member of the Consolidated Group;
(viii) Liens existing on the date of this Agreement and set forth on Schedule 5.02(a)(viii) hereto;
(ix) any Lien granted to Agent, for the benefit of the Lenders;
(x) Liens on Receivables Related Assets of a Receivables Subsidiary in connection with the sale of such Receivables Related Assets pursuant to Section 5.02(f)(iii) hereof;
(xi) in addition to the Liens permitted herein, additional Liens, so long as the aggregate principal amount of all Debt and other obligations secured by such Liens, when taken together with, without duplication, the principal amount of all Debt of Subsidiaries that are not Guarantors incurred pursuant to Section 5.02(e)(viii) below, does not exceed an amount equal to 8.5% of the Consolidated Total Assets at the time such Debt or other obligation is created or incurred;
(xii) Permitted Encumbrances;
(xiii) any Lien existing on any property or asset prior to the acquisition thereof by any member of the Consolidated Group or existing on any property or assets of any Person at the time such Person becomes a Subsidiary after the entry thereof Effective Date; provided that (i) such Lien is not created in contemplation of or in connection with respect such acquisition or such Person becoming a Subsidiary, as the case may be, and (ii) such Lien does not apply to which execution has been stayed any other property or assets of any member of the payment Consolidated Group (other than Persons who become members of which is covered the Consolidated Group in full connection with such acquisition);
(xiv) Liens arising in connection with any margin posted related to Hedge Agreements entered other than for speculative purposes;
(xv) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clauses (vi), (viii), (xi) and (xiii) of this Section 5.02(a); provided that (x) the principal amount of the obligations secured thereby shall be limited to the principal amount of the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof), (y) such Lien shall be limited to all or a part of the assets that secured the obligation so extended, renewed or replaced and (z) in the case of any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (xi) of this Section 5.02(a) such extension, renewal or replacement (or successive renewals or replacements) shall utilize basket capacity under such clause (xi) prior to any excess amount not permitted thereunder being permitted under this clause (xv); and
(xvi) Liens on the products and proceeds (including, without limitation, insurance condemnation and eminent domain proceeds) of and accessions to, and contract or other rights (including rights under insurance policies and product warranties) derivative of or relating to, property subject to a customary deductible) by insuranceLiens under any of the paragraphs of this Section 5.02(a).
Appears in 1 contract
Liens, Etc. Create Neither Obligor will, nor will either Obligor permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of such Obligor or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and Section 10.17), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 10.9;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 10.9, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance or and other forms types of governmental insurance or benefitssocial security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and contracts (other than for borrowed money) similar charges or encumbrances, which, in each case, are granted, entered into or created in the ordinary course of the business of Star Gas or any Subsidiary and which do not interfere with the ordinary conduct of the business of Star Gas or any Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to Star Gas or any other Restricted Subsidiary;
(g) Liens existing on the Assets at the time of the acquisition thereof by Star Gas and described in Schedule 10.2;
(h) Liens created by any of the Security Documents;
(i) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(b) or, to the extent incurred to finance the making of capital improvements, repairs and additions to Star Gas's Assets, Section 10.1(f) (but only to the extent it complies with the requirements thereof), provided that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and of other Indebtedness secured obligations on surety under the Security Documents as provided in Section 10.1(b) or appeal bonds; 10.1(f), (2) the Security Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (3) Star Gas has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to Star Gas of such property or assets and the fair market value of such property or assets (as determined in good faith by the general partner of Star Gas), that such incurrence of Indebtedness pursuant to Section 10.1(b) or 10.1(f), as the case may be, complies in all respects with the requirements of such Section and that the amendments to the Security Documents required by this Section 10.2(i) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect, and (vi4) judgment Liens in existence less than 30 days after Star Gas has delivered to the entry thereof or Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Security Documents has attached and is perfected with respect to which execution has been stayed such additional property and assets;
(j) Liens existing on any property of any Person at the time it becomes a Restricted Subsidiary, or existing prior to the payment time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by Star Gas or any Restricted Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by Star Gas or such Restricted Subsidiary, or created to secure Indebtedness incurred under Section 10.1(f) to pay all or any part of the purchase price ("Purchase Money Lien") of property acquired by Star Gas or a Restricted Subsidiary, provided that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is covered an improvement to or is acquired for specific use in full connection with such acquired property, (ii) such item or items of property so acquired (other than property (which may include stock or other equity interests) subject to Liens existing prior to the time of acquisition and not created in anticipation of such acquisition) are not required to become part of the Mortgaged Property under the terms of the Security Documents, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to Star Gas or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the general partner of Star Gas) at the time such Person owning such property becomes a customary deductibleRestricted Subsidiary or at the time of such acquisition by Star Gas or such Restricted Subsidiary, as the case may be, (iv) any such Purchase Money Lien shall be created not later than 90 days after, in the case of property, its acquisition, or, in the case of improvements, their completion and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Restricted Subsidiary or such acquisition of property by insuranceStar Gas or any Subsidiary;
(k) Liens in amounts not exceeding $100,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(l) Liens arising from or constituting Permitted Encumbrances; and
(m) any Lien renewing, extending or refunding any Lien permitted by the foregoing subdivisions of this Section 10.2, provided that (i) the Indebtedness secured by any such Lien shall not exceed the amount of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien, (ii) no Assets encumbered by any such Lien other than the Assets encumbered immediately prior to such renewal, extension or refunding shall be encumbered thereby and (iii) the maturity date of the Indebtedness secured by any such Lien shall not be sooner than the maturity date of such Indebtedness outstanding immediately prior to the renewal, extension or refunding of such Lien.
Appears in 1 contract
Samples: First Mortgage Notes Agreement (Star Gas Partners Lp)
Liens, Etc. Create The Publisher will not, and will not permit any subsidiary of the Publisher to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset of its propertiesthe Publisher or any subsidiary of the Publisher, whether now owned or held or hereafter acquired, or assignany income or profits therefrom (whether or not provision is made for the equal and ratable securing of the Notes in accordance with the last sentence of this Section), or permit any of its Subsidiaries to assignexcept for the following (collectively, any right to receive income, in each case to secure any indebtedness of any Person other than "Permitted Liens"):
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, mechanics and materialmen and landlords incurred in the ordinary course of business for sums not overdue, yet due or any such Liens being diligently contested in good faith by appropriate proceedings and for the payment of which adequate reserves in accordance with GAAP shall have been set aside on its books is not at the time required;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (viii) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business in connection with workmen's workers' compensation, unemployment insurance or and other forms types of governmental insurance or benefitssocial security, or to secure (or to obtain letters of credit or surety, appeal or performance bonds which secure) the performance of bids, tenders, statutory obligations, leases, purchase, construction or sales contracts and other similar obligations, in each case not incurred in connection with the borrowing of money, the obtaining of advances or the payment of the deferred purchase price of property;
(iv) leases or subleases granted to others, easements, rights-of-way, restrictions and contracts other similar charges or encumbrances, in each case incidental to, and not interfering with, the ordinary conduct of the business of the Publisher or any of its subsidiaries;
(other than v) Liens granted in connection with that certain facility agreement, dated as of July 28, 1998, between Barclays Bank PLC, as secured party and MicroProse Limited, as debtor;
(vi) a Lien in favor of Sony Signatures, as agent for borrowed moneyTristar Pictures, on the "Starship Troopers" trademark, copyrights and related assets;
(vii) entered into Liens granted under that certain mortgage on certain German real property of the Company, dated March 19, 1994 in favor of WestLB Bank, as secured party;
(viii) Liens granted in connection with that certain factoring agreement, dated as of July 13, 1998, between Aerofund Financial Inc., as secured party and MicroProse, Inc., as debtor (the "Aerofund Agreement");
(ix) Liens in favor of Oracle Credit Corporation under an Agreement dated May 30, 1997, on certain accounting software equipment;
(x) equipment Liens on office equipment, arising in the ordinary course of business or to secured obligations and consistent with past practices; and
(xi) those Liens existing on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect Effective Date, as to which execution has been stayed or the payment of which representation and warranty set forth in Section 9.1(h) is covered in full true (subject to a customary deductible) by insurance.collectively, the "Scheduled Liens"), provided that the Publisher covenants and agrees
Appears in 1 contract
Samples: Software Distribution and Loan Agreement (Microprose Inc/De)
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; for taxes, assessments or governmental charges or levies to the extent not past due;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens and other similar Liens arising in the ordinary course of business securing obligations which are not overdue or which are being contested in good faith, provided that any such contested Lien securing an amount claimed in excess of $5,000,000 shall be fully bonded within 90 days after the imposition of such Lien;
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Borrower or such Subsidiary, or to secure the utility obligations of any such Subsidiary incurred in the ordinary course of business;
(iv) (A) purchase money Liens upon or in any personal property now owned or hereafter acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Borrower or any of its Subsidiaries shall be deemed to be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or to secure purchase money financing (2) Debt incurred solely for the purpose of financing the acquisition acquisition, construction or improvement of rights in any such property to be subject to such Liens, or use (B) Liens existing on any such property at the time of acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property; , and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(ivv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens on the capital stock of carriers, warehousemen, mechanics, materialmen and landlords incurred in any of the ordinary course of business for sums not overdue, Borrower’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) Liens securing Debt permitted by Section 5.2(b)(i)(A) or 5.2(b)(i)(B);
(vii) attachment, judgment or other similar Liens arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(viii) Liens incurred in connection with the sales of assets permitted in Section 5.2(f)(vii);
(ix) Liens incurred by the Borrower or any of its Subsidiaries on assets of the Borrower and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed $100,000,000 outstanding at any one time;
(x) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xi) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the use by Borrower or any of its Subsidiaries of their respective properties;
(xii) Liens on assets of any Subsidiary of the Borrower in favor of the Borrower or any wholly-owned Subsidiary of the Borrower; and
(xiii) other Liens set forth in Schedule II hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto.
Appears in 1 contract
Liens, Etc. Create Create, assume or suffer to exist, or permit exist any Lien upon any of its Subsidiaries to create property or suffer to exist, any Lien upon or with respect to any of its propertiesassets (other than Unrestricted Margin Stock), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries ; provided that this Section shall not apply to assign, any right to receive income, in each case to secure any indebtedness of any Person other than the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies taxes not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens that are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on GAAP;
(ii) other statutory, common law or contractual Liens incidental to the conduct of its books business or the ownership of its property and assets that (but only if such Liens A) were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and (B) do not, individually or not in the aggregate, result in a Materially Adverse Change aggregate materially detract from the value of its property or assets or materially adversely affect impair the rights use thereof in the operation of Bank); its business;
(viii) Liens incurred pledges or deposits in the ordinary course of business in connection with workmen's workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(iv) pledges or other forms of governmental insurance or benefits, or deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, leases and contracts surety bonds (other than for borrowed money) entered into bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business business;
(v) Liens on property or assets to secured secure obligations on surety or appeal bonds; and owing to any member of the Consolidated Group;
(vi) judgment (A) purchase money Liens on fixed assets or for the deferred purchase price of property; provided that such Lien is limited to the purchase price and only attaches to the property being acquired and (B) capital leases;
(vii) easements, zoning restrictions or other minor defects or irregularities in existence less than 30 days title of real property not interfering in any material respect with the use of such property in the business of any member of the Consolidated Group;
(viii) Liens existing on the date of this Agreement and, to the extent securing obligations in excess of $25,000,000, set forth on Schedule 5.02(a) hereto;
(ix) any Lien granted to Agent, for the benefit of the Lenders;
(x) Liens on Receivables Related Assets of a Receivables Subsidiary in connection with the sale of such Receivables Related Assets pursuant to Section 5.02(f)(iii) hereof;
(xi) in addition to the Liens permitted herein, additional Liens, so long as the aggregate principal amount of all Debt and other obligations secured by such Liens, when taken together with, without duplication, the principal amount of all Debt of Subsidiaries that are not Guarantors incurred pursuant to Section 5.02(e)(viii) below, does not exceed an amount equal to 10% of the Consolidated Total Assets at the time such Debt or other obligation is created or incurred;
(xii) Permitted Encumbrances;
(xiii) any Lien existing on any property or asset prior to the acquisition thereof by any member of the Consolidated Group or existing on any property or assets of any Person at the time such Person becomes a Subsidiary after the entry thereof Closing Date; provided that (i) such Lien is not created in contemplation of or in connection with respect such acquisition or such Person becoming a Subsidiary, as the case may be, and (ii) such Lien does not apply to which execution has been stayed any other property or assets of any member of the payment Consolidated Group (other than Persons who become members of which is covered the Consolidated Group in full connection with such acquisition);
(xiv) Liens arising in connection with any margin posted related to Hedge Agreements entered other than for speculative purposes;
(xv) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clauses (vi), (viii), (xi) and (xiii) of this Section 5.02(a); provided that (x) the principal amount of the obligations secured thereby shall be limited to the principal amount of the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof), (y) such Lien shall be limited to all or a part of the assets that secured the obligation so extended, renewed or replaced and (z) in the case of any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (xi) of this Section 5.02(a) such extension, renewal or replacement (or successive renewals or replacements) shall utilize basket capacity under such clause (xi) prior to any excess amount not permitted thereunder being permitted under this clause (xv); and
(xvi) Liens on the products and proceeds (including, without limitation, insurance condemnation and eminent domain proceeds) of and accessions to, and contract or other rights (including rights under insurance policies and product warranties) derivative of or relating to, property subject to a customary deductible) by insuranceLiens under any of the paragraphs of this Section 5.02(a).
Appears in 1 contract
Samples: Credit Agreement (STERIS PLC)
Liens, Etc. Create Will not create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume or suffer to exist, any Lien upon on or with respect to any of its properties, 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 any indebtedness of any Person other than than:
(i) Liens in favor of BankPermitted Liens; MARRIOTT CREDIT AGREEMENT
(ii) Liens reflected outstanding on SCHEDULE 6.2(Cthe Effective Date and described on Schedule II as of the Effective Date (“Existing Liens”), and any renewal, extension or replacement (or successive renewals, extensions or replacements) hereto; thereof which does not encumber any property of the Company or its Subsidiaries other than (iii1) purchase money Liens upon the property encumbered by the Lien being renewed, extended or in any personal replaced, (2) property acquired by the Company or held by Borrower or any Subsidiary its Subsidiaries in the ordinary course of business to secure replace property covered by Existing Liens, and (3) de minimis other property incidental to the purchase price of such property referred to in clause (1) or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (2) above;
(iii) Purchase Money Liens;
(iv) Liens for taxeson properties of (X) MVCI, assessments any SLS Entity or any of their respective Subsidiaries, and (Y) MICC, Luxury Finance LLC and any other Subsidiary of the Company principally engaged in the business of finance, banking, credit, leasing, insurance or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); similar operations;
(v) Liens incurred in on properties of Subsidiaries of the ordinary course Company, which properties are located outside the United States of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and America;
(vi) judgment Liens securing COLI Debt;
(vii) Liens on ownership interests of the Company or any of its Subsidiaries in existence less than 30 days after partnerships or joint ventures with third parties which secure the entry thereof Indebtedness of such partnerships or with respect joint ventures, or of Subsidiaries of such partnerships or joint ventures; and
(viii) other Liens securing an aggregate principal amount of Indebtedness or other obligations not to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceexceed $300,000,000 at any time outstanding.
Appears in 1 contract
Liens, Etc. Create or suffer to existThe Borrower will not, or and will not permit any of its Subsidiaries to create or any Holdco Entity to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, except that the Borrower or any of its Subsidiaries or any Holdco Entity may create, incur, assume, or suffer to exist Liens (“Permitted Liens”):
(a) securing the Obligations;
(b) for taxes, assessments, governmental charges, or levies on Property of the Borrower, any of its Subsidiaries or any Holdco Entity not yet due or that (provided foreclosure, sale or other similar proceedings shall not have been initiated) are being contested in each case good faith by appropriate proceedings, and such reserve as may be required by GAAP shall have been made therefor;
(c) in favor of bankers and/or financial institutions in respect of deposit accounts, other Liens imposed by law, such as landlords’, carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are being contested in good faith by appropriate proceedings, provided such reserve as may be required by GAAP shall have been made therefor;
(d) arising in the ordinary course of business out of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower, any indebtedness of its Subsidiaries or any Person Holdco Entity;
(e) comprised of minor defects, irregularities, and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within the areas covered by the easements, leases, licenses and other rights in real property in favor of the Borrower or any of its Subsidiaries or any Holdco Entity which, individually and in the aggregate, do not materially interfere with the ordinary conduct of Business, do not materially detract from the value or the use of the property which they affect, and could not reasonably have a Material Adverse Effect;
(f) comprised of deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business; 3rd Amended/Restated Credit Agreement
(g) created out of judgments or awards against the Borrower, any of its Subsidiaries or any Holdco Entity and that (i) Liens in favor do not give rise to an Event of Bank; Default and (ii) Liens reflected on SCHEDULE 6.2(Cwith respect to which the Borrower, such Subsidiary or such Holdco Entity at the time shall be properly and timely prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review;
(i) hereto; (iii) constituting purchase money Liens or security interests upon or in any personal property Property acquired or held by the Borrower or any Subsidiary of its Subsidiaries or any Holdco Entity in the ordinary course of business to secure the purchase price of such property Property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in or use of such property; Property and (ivii) securing Capital Leases; provided that (A) the aggregate principal amount of the indebtedness secured by the Liens for taxespermitted by this paragraph (h) shall not exceed the greater of (x) $75,000,000 and (y) two and one-half percent (2.5%) of the Borrower’s Consolidated Net Tangible Assets, assessments (B) no such Lien may extend to or cover any Property other governmental charges than the Property being acquired or levies leased, and (C) no such renewal or refinancing may extend to or cover any property not yet due previously subject to the Lien being renewed or thereafter payable without penalty, refinanced;
(i) assumed by Borrower or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, its Subsidiaries or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business Holdco Entity in connection with workmen's compensationan Acquisition; provided, unemployment insurance or other forms that such Liens were not created in contemplation of governmental insurance or benefits, or such Acquisition and do not extend to secure performance of statutory obligations, leases and contracts (any assets other than for borrowed moneythose acquired, and the applicable Debt is permitted by Section 6.02(i);
(j) entered into (i) existing on the Amendment No. 2 Closing Date and listed on Schedule 6.01 attached hereto and (ii) any Liens in favor of the Parent or any of its Subsidiaries that are not Loan Parties (or any assignee or successor thereto that is an Affiliate of the Parent) securing certain obligations owing to the Parent or any of its Subsidiaries that are not Loan Parties (or such Affiliate assignee or successor) similar to those obligations owing under the Pipelines and Terminals Agreements so long as such Liens are subordinated to the Liens on the same assets securing the Obligations on terms not less advantageous to the Administrative Agent and the Lenders and similar to those contained in the ordinary course Subordination, Non-Disturbance and Attornment Agreement executed by the Administrative Agent and HollyFrontier Corporation as of business July 8, 2005, in each case, including any renewals or extensions thereof; provided that the property covered thereby is not increased and any renewal or extension of the obligations secured or benefitted thereby is permitted by Section 6.02;
(k) securing Debt permitted under Section 6.02(k); and
(l) on cash and Liquid Investments securing Swap Contracts between the Borrower or any of its Subsidiaries or any Holdco Entity and any Person who is not a Lender or an Affiliate of a Lender party to secured obligations on surety or appeal bondssuch Swap Contract; and (vi) judgment Liens in existence less than 30 days after provided the entry thereof or with respect to which execution has been stayed or the payment aggregate amount of which is covered in full (cash and/or Liquid Investments subject to a customary deductible) by insurancesuch Liens may at no time exceed $25,000,000.
Appears in 1 contract
Samples: Third Amended and Restated Credit Agreement (HF Sinclair Corp)
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in re- spect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or held or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Notes in accordance with the provisions of rights in or use of such property; and Section 10.16), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due or thereafter payable without penalty, or at the time required by Section 10.9;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is not at the time required by Section 10.9, in each case not incurred or any such Liens being diligently contested made in good faith by appropriate proceedings and for which adequate reserves in accordance connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vc) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workmen's workers' compensation, unemployment insurance or insurance, old age pension, retiree health benefits and other forms types of governmental insurance or benefitssocial security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, leases surety and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; , bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(vid) any attachment or judgment Liens in existence less than 30 Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after expiration of any such stay;
(e) leases or subleases granted to others, zoning restrictions, easements, licenses, reservations, rights-of-way, restrictions on the use of property or irregularities of title (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) and other similar charges or encumbrances, which do not materially interfere with the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(f) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary owing to the Company or any other Restricted Subsidiary;
(g) Liens existing on the Assets at the time of the acquisition thereof by the Company and described in Schedule 10.2;
(h) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(a) or Section 10.1(e);
(i) Liens created by any of the Security Documents securing Indebtedness incurred in accordance with Section 10.1(b), 10.1(f) or 10.1(m), PROVIDED that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and of other Indebtedness secured under the Security Documents as provided in Section 10.1(b), 10.1(f) or 10.1(m), (2) the Security Documents are amended to the extent necessary to extend the Lien thereof to any property or assets acquired or otherwise financed with the proceeds of such Indebtedness, (3) the Company has delivered to the Trustee an Officers' Certificate demonstrating that the principal amount of such Indebtedness does not exceed the lesser of the cost to the Company of such property or assets and the fair market value of such property or assets (as determined in good faith by the Managing General Partner of the Company), that such incurrence of Indebtedness pursuant to Section 10.1(b), 10.1(f) or 10.1(m), as the case may be, complies in all respects with the requirements of such Section and that the amendments to the Security Documents required by this Section 10.2(i) and the filing and recordation of such amendments and related supplements will not have a Material Adverse Effect, and (4) the Company has delivered to the Trustee an opinion of counsel reasonably satisfactory to the Trustee to the effect that the Lien of the Security Documents has attached and is perfected with respect to such additional property and assets;
(j) Liens existing on any property of any Person at the time it becomes a Restricted Subsidiary, or existing prior to the time of acquisition (and not created in anticipation of such acquisition) upon any property acquired by the Company or any Restricted Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Restricted Subsidiary, or created to secure Indebtedness incurred under Section 10.1(f) to pay all or any part of the purchase price ("Purchase Money Lien") of property acquired by the Company or a Restricted Subsidiary or to pay the cost of an improvement (other than improvements to property subject to the Lien of the Security Documents), PROVIDED that (i) any such Lien shall be confined solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for specific use in connection with such acquired property, (ii) such item or items of property so acquired (other than property (which may include stock or other equity interests) subject to Liens existing prior to the time of acquisition and not created in anticipation of such acquisition) are not required to become part of the Collateral under the terms of the Security Documents, (iii) the principal amount of the Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost of such property to the Company or such Restricted Subsidiary, as the case may be, and (B) the fair market value of such property (as determined in good faith by the Managing General Partner) at the time such Person owning such property becomes a Restricted Subsidiary or at the time of such acquisition by the Company or such Restricted Subsidiary, as the case may be, (iv) any such Purchase Money Lien shall be created not later than 90 days after, in the case of property, its acquisition, or, in the case of improvements, their completion and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Restricted Subsidiary or such acquisition of property by the Company or any Subsidiary;
(k) Liens in amounts not exceeding $500,000 incurred, required or provided for under state law in connection with self-insurance arrangements;
(l) Liens arising from or constituting Permitted Encumbrances;
(m) any Lien securing Indebtedness referred to in Section 10.1(i), (j) or (l) renewing or extending any Lien permitted by the foregoing subdivisions of this Section 10.2, PROVIDED that (i) the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding (including any exposure under letters of credit and any unfunded commitments) immediately prior to the renewal or extension of such Lien, (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby or with respect to which execution has been stayed any Indebtedness extending, renewing, refunding or refinancing any Indebtedness secured pursuant to the payment Security Documents, the assets specified therein and (iii) the maturity date of which is covered the Indebtedness secured by any such Lien shall not be sooner than the maturity date of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien;
(n) any Lien securing Indebtedness incurred in full accordance with Section 10.1(n), Section 10.1 (subject to a customary deductiblep), Section 10.1(q) by insuranceor Section 10.1(r);
(o) any Lien arising from the action of collecting banks; and
(p) those Liens described on Schedule 10.2.
Appears in 1 contract
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Obligations in accordance with the provisions of rights in or use of such property; and Section 7.12), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.5 hereof and Section 1.18 of the Mortgages;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdueyet due or the payment of which is being contested in compliance with Section 7.5 hereof and Section 1.18 of the Mortgages, in each case (i) not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in favor of lessors under capital leases and leases of equipment in the ordinary course of business;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal or review, or shall not have been discharged within 60 days after expiration of any such Liens being diligently contested stay;
(g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in good faith by appropriate proceedings and for which adequate reserves each case either (i) are granted, entered into or created in accordance with GAAP shall have been set aside on its books the ordinary course of the business of the Borrower or any Restricted Subsidiary or (but only if such Liens ii) do not, individually or in the aggregate, result in present a Materially reasonable likelihood of having a Material Adverse Change or materially adversely affect the rights of Bank); Effect;
(vh) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of the type described in Section 8.1(c) of such Restricted Subsidiary owing to the Borrower or a Wholly-Owned Restricted Subsidiary;
(i) [Intentionally omitted];
(j) Liens created by any of the Security Documents securing Indebtedness evidenced by the First Mortgage Notes (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(a);
(k) Liens created by any of the Security Documents securing the Indebtedness incurred under the Acquisition Commitment (or any extension, renewal, refunding, replacement-or refinancing of any such Indebtedness) in accordance with Section 8.1(b);
(l) Liens created by any of the Security Documents securing the Indebtedness, or Letters of Credit, incurred under the Revolving Commitment (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness) in accordance with Section 8.1(e);
(m) Liens (other than the Liens referred to in clauses (j), (k) or (l) above) securing Indebtedness represented by the First Mortgage Notes or other Indebtedness incurred in accordance with Section 8.1(b), 8.1(e) or 8.1(l) or, to the ordinary course extent incurred (i) to repay Indebtedness or letter of business credit obligations incurred and outstanding under the Acquisition Commitment or the Revolving Commitment (or any extension, renewal, refunding, replacement or refinancing of any such Indebtedness), (ii) to finance the making of expenditures for the improvement or repair (to the extent such improvements and repairs may be capitalized on the books of the Borrower and the Restricted Subsidiaries in accordance with GAAP) of or additions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, or (iii) by assumption in connection with workmen's compensationadditions (including additions by way of acquisitions or capital contributions of businesses and related assets) to the General Collateral, unemployment insurance under Section 8.1(f), provided, that (1) such Liens are effected through an amendment to the Security Documents to the extent necessary to provide the holders of such Indebtedness equal and ratable security in the property and assets subject to the Security Documents with the holders of the Notes and the other Indebtedness secured under the Security Documents, (2) in the case of Indebtedness incurred in accordance with Section 8.1(b) or other forms Section 8.1(f) to finance the making of governmental insurance additions to the General Collateral, the Borrower has delivered to the Collateral Agent an Officers' Certificate demonstrating that the principal amount of such Indebtedness (net of transaction costs funded by the proceeds of such Indebtedness) does not exceed the lesser of the cost to the Borrower and the Restricted Subsidiaries of such additional property or benefitsassets and the fair market value of such additional property or assets at the time of the acquisition thereof (as determined in good faith by the General Partner), and (3) the Borrower has delivered to the Collateral Agent an opinion of counsel reasonably satisfactory to the Collateral Agent with regard to the attachment and perfection of the Lien of the Security Documents with respect to such additional property and assets;
(n) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Borrower, or existing at the time of acquisition upon any property acquired by the Borrower or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Borrower or such Subsidiary, or created to secure performance Indebtedness incurred under Section 8.1(f) to pay all or any part of statutory obligationsthe purchase price (a "PURCHASE MONEY LIEN") of property (including without limitation Capital Stock and other securities) acquired by the Borrower or a Restricted Subsidiary, leases and contracts provided, that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other than property which is an improvement to or is acquired for borrowed moneyuse specifically in connection with such acquired property, (ii) entered into such item or items of property so acquired are not required to become part of the General Collateral under the terms of the Security Documents, (iii) in the ordinary course case of business or a Purchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to secured obligations on surety or appeal bonds; the lesser of (A) the cost to the Borrower and the Restricted Subsidiaries of such property and (viB) judgment Liens the fair market value of such property at the time of the acquisition thereof (as determined in existence less good faith by the General Partner), (iv) any such Purchase Money Lien shall be created not later than 30 days after the entry thereof acquisition of such property and (v) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person's becoming a Subsidiary of the Borrower or such acquisition of property by the Borrower or any Subsidiary;
(o) easements, exceptions or reservations in any property of the Borrower or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;
(p) Liens arising from or constituting Permitted Encumbrances as defined under the Security Documents; and
(q) any Lien renewing or extending any Lien permitted by subsection (h), (j), (k), (l), (m) or (n) of this Section 8.3, provided, that (i) the principal amount of the Indebtedness secured by any such Lien shall not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal or extension of such Lien (together with, in the case of Indebtedness permitted by Section 8.1(a), any accrued interest thereon and prepayment charges with respect thereto), and (ii) no assets encumbered by any such Lien other than the assets encumbered immediately prior to such renewal or extension shall be encumbered thereby. Notwithstanding anything in this Agreement to the contrary, until the AEPLP Security Date, other than Liens permitted by subsections (a), (b), (c), (d), (f), (g), (h), (o) and (to the extent that any such Lien extends or renews a Lien permitted by subsection (h) of this Section 8.3) (q) of this Section 8.3, the Borrower will not permit AEPLP or any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to which execution has been stayed any property or the payment asset (including any document or instrument in respect of which is covered in full (subject to a customary deductiblegoods or accounts receivable) by insuranceof AEPLP or such Subsidiary, whether such property or assets are now owned or held or hereafter acquired, or any income or profits therefrom.
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; for taxes, assessments or governmental charges or levies to the extent not past due;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens and other similar Liens arising in the ordinary course of business securing obligations which are not overdue or which are being contested in good faith, provided that any such contested Lien securing an amount claimed in excess of $5,000,000 shall be fully bonded within 90 days after the imposition of such Lien;
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Borrower or such Subsidiary, or to secure the utility obligations of any such Subsidiary incurred in the ordinary course of business;
(iv) (A) purchase money Liens upon or in any personal property now owned or hereafter acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Borrower or any of its Subsidiaries shall be deemed to be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or to secure purchase money financing (2) Debt incurred solely for the purpose of financing the acquisition acquisition, construction or improvement of rights in any such property to be subject to such Liens, or use (B) Liens existing on any such property at the time of acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property; , and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(ivv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens on the capital stock of carriers, warehousemen, mechanics, materialmen and landlords incurred in any of the ordinary course of business for sums not overdue, Borrower’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being diligently actively contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens securing Debt permitted by Section 5.2(b)(i)(B) or Section 5.2(b)(i)(D);
(viii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(ix) Liens incurred in connection with the sales of assets permitted in Section 5.2(f)(viii);
(x) Liens incurred by the Borrower or any of its Subsidiaries on assets of the Borrower and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed $100,000,000 outstanding at any one time;
(xi) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xii) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the use by Borrower or any of its Subsidiaries of their respective properties;
(xiii) Liens on assets of any Subsidiary of the Borrower in favor of the Borrower or any wholly-owned Subsidiary of the Borrower; and
(xiv) other Liens set forth in Schedule II hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its ----------- their Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following ("Permitted Liens"): ---------------
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto; , and the renewal and replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due be required by Section 7.01(c) hereof;
(iv) Liens created by operation of law or thereafter payable without penaltyleases (other than Liens created under Environmental Laws), or Liens of carrierssuch as landlords' liens, warehousemenmaterialmen's liens, mechanics' liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof;
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the Internal Revenue Code) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money, or (B) materially impair the value of such property or materially impair the use thereof by the Borrowers, the Guarantors or any of their Subsidiaries in full the normal conduct of such Person's business;
(subject to a customary deductiblevii) Liens created under the Factoring Agreements;
(viii) purchase money liens on or purchase money security interests in equipment acquired or held in the ordinary course of business of the Borrowers, the Guarantors and their Subsidiaries securing Indebtedness not exceeding in any Fiscal Year of the Company the aggregate principal amount of $1,000,000 for the Borrowers, the Guarantors and their Subsidiaries;
(ix) Liens securing Capitalized Leases permitted by insuranceSection 7.02(g); and
(x) Liens in favor of the Sellers on the Capital Stock of Xxxx-Xx securing the Xxxx-Xx Earn Out Payment.
Appears in 1 contract
Liens, Etc. Create or suffer to existThe Borrower shall not, or nor shall it permit any of its Subsidiaries to create to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive incomeincome therefrom, in each case except that the Borrower and its Subsidiaries may create, incur, assume and suffer to secure any indebtedness of any Person other than exist the following which are permitted liens (i) Liens in favor of Bank; "Permitted Liens"):
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies on its Property if the same shall not yet due at the time be delinquent or thereafter payable can be paid without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens are being diligently contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books books;
(but only if such b) Liens do notimposed by law, individually or arising by operation of law, including, without limitation, landlord's carriers', warehousemen's, mechanics' liens, maritime Liens and other similar liens arising in the aggregate, result ordinary course of business which secure payment of obligations not more than 60 days past due or which are being contested in a Materially Adverse Change or materially adversely affect good faith by appropriate proceedings and for which reserves in accordance with GAAP shall have been set aside on the rights books of Bank); the applicable Person;
(vc) Liens incurred and pledges and deposits made in the ordinary course of business in connection with workmenworker's compensation, unemployment insurance insurance, old age pensions, or other forms of governmental insurance social security or retirement benefits, or similar legislation, other than any Lien imposed by ERISA not otherwise permitted by this Agreement;
(d) zoning restrictions, easements, licenses, covenants, reservations, restrictions on the use of Property, defects, irregularities and deficiencies in title to Property and such other encumbrances or charges against real property as are of a nature generally existing with respect to Property of a similar character and which, in the aggregate, are not substantial in amount, and which do not in any material way interfere with the use thereof in the business of the Borrower or its Subsidiaries;
(e) Liens existing on the Closing Date and described in Schedule 6.1;
(f) Liens created by Capitalized Leases provided that the Liens created by any such Capitalized Lease attach only to the Property leased pursuant thereto and proceeds (including, without limitation, proceeds from associated contracts and insurances) of, and improvements, accessories and upgrades to, the Property leased pursuant thereto; (g) Liens to secure performance Debt incurred for the purpose of statutory obligationsfinancing all or a part of the purchase price or construction cost of Property if (A) the principal amount of the Debt secured by such Liens does not exceed the cost of the Property so acquired or constructed plus transaction costs related thereto, leases and contracts (B) such Liens do not encumber any other Property (other than for borrowed moneythe proceeds (including, without limitation, proceeds from associated contracts and insurances) entered into in of, and improvements, accessories and upgrades to, the ordinary course of business Property so acquired or to secured obligations on surety or appeal bonds; constructed), and (viC) judgment such Liens in existence less attach no later than 30 days 12 months after the entry thereof later of (x) commencement of commercial operation of the Property so acquired or with respect to which execution has been stayed constructed, (y) completion of the construction or the payment acquisition of which is covered in full such Property and (subject to a customary deductiblez) by insurance.acquisition of such Property;
Appears in 1 contract
Samples: Revolving Credit Agreement (McDermott International Inc)
Liens, Etc. Create The Borrower will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, or assignany income or profits therefrom, or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.4 hereof;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdue, yet due or any such Liens the payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves (i) not incurred or made in accordance connection with GAAP the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in favor of lessors under capital leases and leases of equipment in the ordinary course of business;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other types of social security, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been set aside on its books discharged or execution thereof stayed pending appeal or review, or shall not have been discharged within 60 days after expiration of any such stay;
(but only if such Liens g) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, which, in each case either (i) are granted, entered into or created in the ordinary course of the business of the Borrower or any Restricted Subsidiary or (ii) do not, individually or in the aggregate, result in present a Materially reasonable likelihood of having a Material Adverse Change or materially adversely affect the rights of Bank); Effect;
(vh) Liens existing on any property of any Person at the time it becomes a Subsidiary of the Borrower, or existing at the time of acquisition upon any property acquired by the Borrower or any such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Borrower or such Subsidiary, or created to secure Indebtedness incurred in under Section 8.1(f) to pay all or any part of the ordinary course purchase price (a “Purchase Money Lien”) of business property (including without limitation Capital Stock and other securities) acquired by the Borrower or a Restricted Subsidiary, provided, that (i) any such Lien shall be confined solely to such item or items of property and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for use specifically in connection with workmen's compensationsuch acquired property, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed moneyii) entered into in the ordinary course case of business or a Purchase Money Lien, the principal amount of the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to secured obligations on surety or appeal bonds; the lesser of (A) the cost to the Borrower and the Restricted Subsidiaries of such property and (viB) judgment Liens the fair market value of such property at the time of the acquisition thereof (as determined in existence less good faith by the General Partner), (iii) any such Purchase Money Lien shall be created not later than 30 days after the entry thereof acquisition of such property and (iv) any such Lien (other than a Purchase Money Lien) shall not have been created or assumed in contemplation of such Person’s becoming a Subsidiary of the Borrower or such acquisition of property by the Borrower or any Subsidiary;
(i) Liens securing other obligations otherwise permitted under this Agreement, including, but not limited to, Capitalized Lease Obligations, which obligations secured by such Liens shall not exceed an amount equal to 3% of Consolidated Net Tangible Assets at such time;
(j) Liens securing the First Mortgage Notes that attach to the assets of the Borrower or any Restricted Subsidiary pursuant to Section 1.3 of either of the First Mortgage Note Agreements; provided, that at no time when such Liens exist, shall the Leverage Ratio exceed 2.00 to 1.00; and
(k) easements, exceptions or reservations in any property of the Borrower or any Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use of real property, facilities and equipment, which are incidental to, and do not materially interfere with, the ordinary conduct of the business of the Borrower or any Restricted Subsidiary. Notwithstanding anything in this Agreement to the contrary, until the AEPLP Guaranty Date, other than Liens permitted by subsections (a), (b), CO, (d), (f), (g), ICI) and Li) of this Section 8.3, the Borrower will not permit AEPLP or any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to which execution has been stayed any property or the payment asset (including any document or instrument in respect of which is covered in full (subject to a customary deductiblegoods or accounts receivable) by insuranceof AEPLP or such Subsidiary, whether such property or assets are now owned or held or hereafter acquired, or any income or profits therefrom.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Liens, Etc. Create or suffer to existThe Borrower will not, or and will not permit any of its Subsidiaries to create to, create, assume, incur or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, except that the Borrower or any of its Subsidiaries may create, incur, assume, or suffer to exist Liens (“Permitted Liens”):
(a) securing the Obligations;
(b) for taxes, assessments, governmental charges, or levies on Property of the Borrower or any Guarantor not yet due or that (provided foreclosure, sale or other similar proceedings shall not have been initiated) are being contested in each case good faith by appropriate proceedings, and such reserve as may be required by GAAP shall have been made therefor;
(c) in favor of bankers and/or financial institutions in respect of deposit accounts, other Liens imposed by law, such as landlords’, carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are being contested in good faith by appropriate proceedings, provided such reserve as may be required by GAAP shall have been made therefor;
(d) arising in the ordinary course of business out of pledges or deposits under workers’ compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations of the Borrower or any indebtedness Guarantor;
(e) comprised of minor defects, irregularities, and deficiencies in title to, and easements, rights-of-way, zoning restrictions and other similar restrictions, charges or encumbrances, defects and irregularities in the physical placement and location of pipelines within the areas covered by the easements, leases, licenses and other rights in real property in favor of the Borrower or any Person of its Subsidiaries which, individually and in the aggregate, do not materially interfere with the ordinary conduct of Business, do not materially detract from the value or the use of the property which they affect, and could not reasonably have a Material Adverse Effect;
(f) comprised of deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business;
(g) created out of judgments or awards against the Borrower or any Guarantor and that (i) Liens in favor do not give rise to an Event of Bank; Default and (ii) Liens reflected on SCHEDULE 6.2(Cwith respect to which the Borrower or any Guarantor at the time shall be properly and timely prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review;
(h) hereto; (iii) constituting purchase money Liens or security interests upon or in any personal property Property acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business to secure the purchase price of such property Property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in such Property; provided that (A) the aggregate principal amount of the indebtedness secured by the Liens permitted by this paragraph (i) shall not exceed $30,000,000, (B) no such Lien may extend to or use of such property; cover any Property other than the Property being acquired, and (ivC) Liens for taxes, assessments no such renewal or other governmental charges refinancing may extend to or levies cover any property not yet due previously subject to the Lien being renewed or thereafter payable without penalty, refinanced;
(i) (i) assumed by Borrower or Liens its Subsidiaries in connection with an Acquisition and (ii) securing Capital Leases; provided that the aggregate amount of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any all Debt secured by such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or may not exceed $30,000,000 in the aggregate, result in a Materially Adverse Change ;
(j) existing on the Effective Date and listed on Schedule 6.01 attached hereto and any renewals or materially adversely affect extensions thereof; provided that the rights property covered thereby is not increased and any renewal or extension of Bankthe obligations secured or benefitted thereby is permitted by Section 6.02; and
(k) securing Debt permitted under Section 6.02(k); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its their ---------- Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than than:
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected existing on SCHEDULE 6.2(Cthe date hereof, as set forth in Schedule 7.02(a)(ii) hereto; , but not the (A) extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.01(c) hereof;
(iv) Liens created by operation of law, or Liens of carriers, warehousemensuch as materialmen's Liens, mechanics' Liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overdue, or any such Liens being diligently contested in good faith be required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Section 7.01(c) hereof,
(v) deposits, pledges or Liens (other than Liens arising under ERISA or the IRC) securing (A) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations on surety or appeal bonds; and which are not past due;
(vi) judgment Liens restrictions on the use of real property and minor irregularities in existence less than 30 days after the entry thereof or with respect to title thereto which execution has been stayed or do not (A) secure obligations for the payment of which is covered money or (B) materially impair the value of such property or its use by the Borrowers, the Corporate Guarantors or any of their Subsidiaries in full the normal conduct of such Person's business;
(subject to a customary deductiblevii) by insuranceLiens created under the Factoring Agreements;
(viii) purchase money Liens on or purchase money security interests in equipment acquired or held in the ordinary course of business of the Borrowers, the Corporate Guarantors and their Subsidiaries securing Indebtedness not exceeding the aggregate principal amount of $200,000 in any year for the Borrowers, the Corporate Guarantors and their Subsidiaries; and
(ix) Liens created under the Existing Factoring Agreement.
Appears in 1 contract
Samples: Financing Agreement (Happy Kids Inc)
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (i"Permitted Liens"):
(a) Liens in favor of Bank; created pursuant to the Loan Documents;
(iib) Liens reflected existing on SCHEDULE 6.2(C) the date hereof, as set forth in Schedule 8.01 hereto; (iii) purchase money Liens upon , and the renewal or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price replacement of such Liens, provided that any such renewal or replacement Lien shall be limited to the property or to secure purchase money financing incurred solely for assets covered by the purpose Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of financing Indebtedness secured by the acquisition of rights in Lien renewed or use of such property; and replaced;
(ivc) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law other than Environmental Liens, or Liens of carriers, warehousemensuch as materialmen's liens, mechanics' liens and other similar liens, materialmen and landlords incurred arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than 60 days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such e) deposits, pledges or Liens do not, individually (other than Liens arising under ERISA or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Code) securing (v1) Liens obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) restrictions on surety or appeal bonds; the use of real property and minor irregularities in the title thereto which do not (vi1) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or secure obligations for the payment of which is covered money or (2) materially impair the value of such property or its use by the Borrower or any of its Subsidiaries in full the normal conduct of such Person's business;
(subject to a customary deductibleg) by insuranceLiens on or security interests in equipment or real property securing Indebtedness permitted under Section 8.02 (b) or (c) hereof.
Appears in 1 contract
Liens, Etc. Create Will not create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume or suffer to exist, any Lien upon on or with respect to any of its properties, 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 any indebtedness of any Person other than than:
(i) Liens in favor of Bank; Permitted Liens;
(ii) Liens reflected outstanding on SCHEDULE 6.2(Cthe Effective Date and described on Schedule II as of the Effective Date (“Existing Liens”), and any renewal, extension or replacement (or successive renewals, extensions or replacements) hereto; thereof which does not encumber any property of the Company or its Subsidiaries other than (iii1) purchase money Liens upon CREDIT AGREEMENT the property encumbered by the Lien being renewed, extended or in any personal replaced, (2) property acquired by the Company or held by Borrower or any Subsidiary its Subsidiaries in the ordinary course of business to secure replace property covered by Existing Liens, and (3) de minimis other property incidental to the purchase price of such property referred to in clause (1) or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (2) above;
(iii) Purchase Money Liens;
(iv) Liens for taxeson properties of (X) MVCI, assessments any SLS Entity or any of their respective Subsidiaries, and (Y) MICC, Luxury Finance LLC and any other Subsidiary of the Company principally engaged in the business of finance, banking, credit, leasing, insurance or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); similar operations;
(v) Liens incurred in on properties of Subsidiaries of the ordinary course Company, which properties are located outside the United States of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and America;
(vi) judgment Liens in existence less than 30 days after the entry thereof securing COLI Debt; and
(vii) other Liens securing an aggregate principal amount of Indebtedness or with respect other obligations not to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insuranceexceed $300,000,000 at any time outstanding.
Appears in 1 contract
Liens, Etc. Create Create, incur or suffer to exist, or permit any of its Subsidiaries to create create, incur or suffer to exist, any Lien upon on or with respect to any of its properties, whether now owned or hereafter acquired, or assignupon any income or profits therefrom, or acquire or agree to acquire, or permit any of its Subsidiaries Subsidiary to assignacquire, any right to receive incomeproperty or assets upon conditional sales agreements or other title retention devices, in each case to secure any indebtedness of any Person other than except:
(i) Liens in favor for taxes and assessments or governmental charges or levies and Liens securing claims or demands of Bank; mechanics and materialmen, provided that payment thereof is not at the time required by Section 5.01(a) or (b);
(ii) Liens reflected on SCHEDULE 6.2(Cany Lien of or resulting from any judgment or award; provided that either (A) hereto; the amount secured thereby does not exceed $200,000,000 or (B) if the amount secured thereby does exceed $200,000,000, the time for the appeal or petition for rehearing of such judgment or award shall not have expired, or the Borrower or a Subsidiary shall in good faith be prosecuting an appeal or proceeding for a review thereof, and execution of such judgment or award shall be stayed pending such appeal or proceeding for review;
(iii) purchase money Liens upon or in any personal property acquired or held incidental to the conduct of business conducted by the Borrower or any Subsidiary and its Subsidiaries in the ordinary course of business to secure or the purchase price ownership of properties and assets owned by the Borrower and its Subsidiaries (including (x) Liens in connection with worker’s compensation, unemployment insurance and other like laws, (y) warehousemen’s and attorneys’ liens and statutory landlords’ liens and (z) Liens consisting of any right of offset, or statutory or consensual banker’s lien, on bank deposits or securities accounts maintained in the ordinary course of business so long as such property bank deposits or to secure purchase money financing incurred solely securities accounts are not established or maintained for the purpose of financing providing such right of offset or banker’s lien) and Liens to secure the acquisition performance of rights in bids, tenders or use of such property; and (iv) Liens for taxestrade contracts, assessments or to secure statutory obligations, surety or appeal bonds or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords like general nature incurred in the ordinary course of business for sums of the Borrower and its Subsidiaries and not in connection with the borrowing of money, provided in each case, the obligation secured is not overdue or, if overdue, or any such Liens is being diligently contested in good faith by appropriate proceedings actions or proceedings;
(iv) survey exceptions or encumbrances, encroachments, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, zoning restrictions, declarations of covenants, conditions and restrictions, other title exceptions or other restrictions as to the use of real properties, which are necessary or appropriate in the good faith judgment of the Borrower for which adequate reserves in accordance with GAAP shall have been set aside on the conduct of the business of the Borrower and its books (but only if such Liens do notSubsidiaries and which, individually or in the aggregate, result do not in a Materially Adverse Change or any event materially adversely affect the rights of Bank); (v) Liens incurred impair their use in the ordinary course operation of the business in connection with workmen's compensation, unemployment insurance of the Borrower or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases the Borrower and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to its Subsidiaries taken as a customary deductible) by insurance.whole;
Appears in 1 contract
Samples: Term Loan Credit Agreement (Applied Materials Inc /De)
Liens, Etc. Create The Company will not, and will not permit any Restricted Subsidiary to, directly or suffer to existindirectly create, incur, assume or permit any of its Subsidiaries to create or suffer to exist, exist any Lien upon on or with respect to any property or asset (including any document or instrument in respect of its propertiesgoods or accounts receivable) of the Company or any Restricted Subsidiary, whether now owned or hereafter acquired, or assign, any income or permit any of its Subsidiaries to assign, any right to receive income, in each case to secure any indebtedness of any Person other than profits therefrom (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon whether or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely not provision is made for the purpose equal and ratable securing of financing the acquisition Obligations in accordance with the provisions of rights in or use of such property; and Section 7.12), except:
(iva) Liens for taxes, assessments or other governmental charges or levies the payment of which is not yet due and payable or thereafter payable without penalty, or which is being contested in compliance with Section 7.5 and Section 1.18 of the Mortgages;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen materialmen, repairmen and landlords other like Liens incurred in the ordinary course of business for sums not overdue, yet due or any such Liens the payment of which is being diligently contested in good faith by appropriate proceedings compliance with Section 7.5 and for which adequate reserves Section 1.18 of the Mortgages, in accordance each case (i) not incurred or made in -76- 84 connection with GAAP shall have been set aside on its books the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vii) Liens incurred in the ordinary course of business securing the unpaid purchase price of property or services constituting current accounts payable; and precautionary Liens in connection with workmen's compensation, unemployment insurance or other forms favor of governmental insurance or benefits, or to secure performance of statutory obligations, lessors under capital leases and contracts leases of equipment in the ordinary course of business;
(c) Liens (other than for borrowed moneyany Lien imposed by ERISA) entered into incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security, or (ii) to secure (or to secured obligations on obtain letters of credit that secure) the performance of tenders, statutory obligations, surety or and appeal bonds; , bids, leases, performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(vid) other deposits made to secure liability to insurance carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of credit, provided in each case that such Liens cover only the title documents and related goods (and any proceeds thereof) covered by the related letter of credit;
(f) any attachment or judgment Liens in existence less than 30 Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal or with respect to which execution has review, or shall not have been stayed or the payment discharged within 60 days after expiration of which is covered in full (subject to a customary deductible) by insurance.any such stay;
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries or any other Loan Party to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following Liens (i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by to the extent, with respect to the Borrower or any Subsidiary in of its assets or properties (x) if created, incurred or assumed by the ordinary course of business to secure Borrower on or after the purchase price of such property or to secure purchase money financing incurred solely for Filing Date are approved and authorized by the purpose of financing the acquisition of rights in or use of such property; Bankruptcy Court and (ivy) if created, incurred or assumed by the Borrower before the Filing Date are valid, perfected and non-avoidable in accordance with applicable law) ("Permitted Liens"):
(a) Liens created pursuant to the Loan Documents or the Interim Financing Order or the Final Financing Order;
(b) Liens existing on the date hereof, as set forth in Schedule 8.01 hereto;
(c) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law other than Environmental Liens, or Liens such as liens of materialmen, mechanics, carriers, warehousemen, mechanicssuppliers, materialmen and landlords incurred other similar liens, arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than thirty (30) days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such e) deposits, pledges or Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vother than Liens arising under ERISA) Liens securing (1) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) restrictions on surety or appeal bonds; the use of Real Estate and minor irregularities in the title thereto which (vi1) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or do not secure obligations for the payment of money, other than those created pursuant to the Loan Documents or are permitted under clauses (b) and (j) of this Section 8.01 or (2) do not materially impair the value of such Real Estate or its use by the Borrower or any of its Subsidiaries in the normal conduct of such Person's business;
(g) purchase money Liens on or purchase money security interests in equipment or Real Estate acquired or held in the ordinary course of its business securing Indebtedness, provided that the Indebtedness secured by such Liens or security interests shall not exceed the aggregate principal amount of $100,000 per annum;
(h) Liens securing Capitalized Leases to the extent permitted under Section 8.13;
(i) [Intentionally left blank];
(j) Liens on Real Estate of the Borrower which secure Indebtedness incurred by the Borrower;
(k) [Intentionally left blank];
(l) Liens upon any property or assets of any Subsidiary of the Borrower existing at the time such Subsidiary is acquired by, merged into or consolidated with the Borrower in accordance with the terms of this Agreement, provided that such Liens were not created in contemplation of any such acquisition, merger or consolidation;
(m) pre-existing Liens upon any property or assets existing at the time such property or assets are acquired by the Borrower, provided that such Liens were not created in contemplation of such acquisition;
(n) Liens created pursuant to the Senior Notes Collateral Agreement; and
(o) renewals and replacements of the Liens described in clauses (b), (g), (f), (l), (m) and (n) of this Section 8.01, provided that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in full (subject to a customary deductible) an amount not greater than the amount of Indebtedness secured by insurancethe Lien renewed or replaced.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Golden Books Family Entertainment Inc)
Liens, Etc. Create On and after the date of this Loan Agreement until September 30, 1998 or suffer to existsuch later date as any loan hereunder shall remain unpaid, or permit any of its Subsidiaries to MEMC will not, unless HC shall otherwise consent in writing, create or suffer to exist, any Lien lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, upon or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case to secure any indebtedness of debt owed to any Person person or entity, other than than:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iiia) purchase money Liens liens or purchase money security interests upon or in any personal property acquired or held by Borrower or any Subsidiary MEMC in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights such property;
(b) liens or security interests existing on such property at the time of its acquisition (other than any such lien or security interest created in or use contemplation of such property; and acquisition);
(ivc) Liens liens for taxes, assessments or other governmental and government charges or levies to the extent not yet due or thereafter payable without penaltyto the extent such taxes, assessments or Liens of carriersgovernment charges or levies are being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, warehousemenunless and until any lien resulting therefrom attaches to MEMC's property and becomes enforceable against its other creditors;
(d) liens imposed by law, such as materialmen's, mechanics', materialmen carriers', workmens' and landlords incurred repairmen's liens and other similar liens arising in the ordinary course of business securing obligations that are not overdue for sums a period of more than 30 days;
(e) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory obligations;
(f) easements, rights of way and other encumbrances on title to real property that do not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in render title to the aggregate, result in a Materially Adverse Change property encumbered thereby unmarketable or materially adversely affect the rights use of Bank)such property for its present purposes; and
(vg) Liens liens incurred or deposits made in the ordinary course of business to secure the performance of letters of credit, bids, tenders, sales contracts, leases, surety, appeal and performance bonds and other similar obligations not incurred in connection with workmen's compensation, unemployment insurance or other forms the borrowing of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance.
Appears in 1 contract
Liens, Etc. Create The Borrower will not create, assume, incur or suffer to exist, or permit any of its Subsidiaries (except for Permitted Other Subsidiaries) to create create, assume, incur, or suffer to exist, any Lien upon on or with in respect to of any of its properties, Property whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, assign any right to receive income, in each case except that the Borrower and its Subsidiaries may create, incur, assume or suffer to secure any indebtedness of any Person other than exist Liens:
(ia) Liens in favor of Bank; securing the Obligations;
(iib) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies on Property of the Borrower or any Guarantor to the extent not yet due or thereafter payable without penaltyrequired to be paid pursuant to Sections 5.03;
(c) imposed by law (such as landlords’, or Liens of carriers’, warehousemen, ’s and mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue, ’ liens or any such Liens otherwise arising from litigation) (a) which are being diligently contested in good faith and by appropriate proceedings and for proceedings, (b) with respect to which adequate reserves in accordance conformity with GAAP shall have been set aside on its books provided, (but only if c) which have not resulted in any Hotel Property being in jeopardy of being sold, forfeited or lost during or as a result of such Liens do contest, (d) neither the Administrative Agent nor any Bank could become subject to any civil fine or penalty or criminal fine or penalty, in each case as a result of non-payment of such charge or claim and (e) such contest does not, individually or in the aggregateand could not reasonably be expected to, result in a Materially Material Adverse Change or materially adversely affect Change;
(d) on leased personal property to secure solely the rights lease obligations associated with such property;
(e) securing Secured Recourse Indebtedness and Secured Non-Recourse Indebtedness permitted pursuant to the provisions of Bank)Section 6.02; and
(vf) Liens incurred arising under the New York Mortgages; provided, no New York Mortgage shall be permitted hereunder unless the Administrative Agent is a “Qualified Unsecured Lender” (as such term is defined in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed moneyExisting Revolving Credit Agreement) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and (vi) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or such New York Mortgage for purposes of Section 9.01(f) of the payment of which is covered in full (subject to a customary deductible) by insuranceExisting Revolving Credit Agreement.
Appears in 1 contract
Samples: Senior Unsecured Term Loan Agreement (LaSalle Hotel Properties)
Liens, Etc. Create or suffer to exist, or permit any of its their Subsidiaries to (other than Subsidiaries of Alon Interests) to, create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following (each, a “Permitted Lien”):
(i) Liens in favor of Bank; created pursuant to the Loan Documents;
(ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.01(c) hereof;
(iii) Liens created by operation of law (other than Liens created under Environmental Laws), or Liens of carriers, warehousemensuch as materialmen’s liens, mechanics’ liens and other similar Liens, materialmen and landlords incurred arising in the ordinary course of business for sums and securing claims the payment of which shall not overduebe required by Section 7.01(c) hereof;
(iv) deposits, pledges or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such other than Liens do not, individually arising under ERISA or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); Internal Revenue Code) securing (vA) Liens obligations incurred in the ordinary course respect of business in connection with workmen's workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (B) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(v) easements, rights-of-way, zoning and similar restrictions and other similar charges and encumbrances on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or to secured obligations on surety (B) materially impair the value of such property or appeal bonds; and materially impair the use thereof by any of the Companies or any of their Subsidiaries in the normal conduct of such Person’s business;
(vi) judgment Liens on the Fixed Assets and the License Agreement, provided such Liens are subject to an intercreditor agreement, in form and substance reasonably satisfactory to the Agent and the Lenders and, in the case of Lien on the License Agreement, subject to the WC Collateral Agent having a second priority Lien on the License Agreement; and
(vii) so long as no Event of Default has occurred or is continuing or will result from the creation or existence less of any such Liens and such Liens do not encumber or otherwise cover any of the Collateral securing the Obligations hereunder and under the other Loan Documents (other than 30 days after the entry thereof or with respect to the License Agreement), other Liens (whether in one transaction or in a series of related transactions) (A) securing obligations, actual or contingent, in an aggregate amount not to exceed $25,000,000 at any time outstanding, or (B) securing obligations, actual or contingent, in an aggregate amount greater than $25,000,000, provided that prior to the creation or existence or incurrence of any such Lien the Borrower delivers to the Agent a certificate of a Responsible Officer of the Borrower, certifying that (I) immediately before and after the creation or incurrence of any such Liens, no Event of Default has occurred or is continuing or will result from the creation or incurrence of any such Liens, (II) as of the last Fiscal Quarter for which execution has been stayed financial statements were delivered to the Lenders pursuant to Section 7.01(a)(i), on a pro forma basis after giving effect to such creation or incurrence of Indebtedness, Liens or other obligations as if it had occurred at the payment beginning of the most recent fiscal period of four Fiscal Quarters for which is covered such financial statements were delivered, Alon USA and its Consolidated Subsidiaries would be in full compliance with the covenants contained in Section 7.02(i) hereof (subject which certification shall set forth in reasonable detail the Borrower’s calculations, shall be prepared both on a reasonable basis and in good faith and based on assumptions believed by the Borrower to a customary deductiblebe reasonable at the time made), and (III) by insurancesuch Liens do not encumber the Collateral securing the Obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bankso required); 38
(viii) Liens pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Guarantor or any Subsidiary, or to secure the utility obligations of any such Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Guarantor or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Guarantor’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(A) Liens in favor of JPMorgan Chase Bank, N.A. (or any successor thereto), as agent under the Existing AEF Facility to secure the obligations of the Borrower or the Guarantor thereunder, and (B) Liens in favor of Xxxxx Fargo Bank, National Association (or any successor thereto), as agent under the Master Credit Facility to secure the obligations of the Guarantor or the respective Utilities thereunder;
(xi) Liens incurred in connection with the sales of assets permitted in Section 5.2(d)(viii);
(xii) Liens incurred by the Guarantor or any of its Subsidiaries on assets of the Guarantor and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of the Guarantor and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time
(xiii) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xiv) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the Guarantor’s use of its properties;
(xv) Liens set forth in Schedule II hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto;
(xvi) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code or similar Lien in any foreign jurisdiction on items in the course of collection and normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(xvii) other Liens securing obligations of the Guarantor and its Subsidiaries not to exceed more than ten percent (10%) of the consolidated tangible assets (valued at book value) of the Guarantor and its Subsidiaries at any time.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, upon or with respect to any of its properties, 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 any indebtedness of any Person other than than:
(i) Liens for taxes not yet due or which are being contested in favor of Bank; good faith by appropriate proceedings and with respect to which adequate reserves are being maintained;
(ii) Statutory liens of landlords and liens of carriers, warehousemen, mechanics, materialmen and other Liens reflected on SCHEDULE 6.2(C) hereto; imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained;
(iii) Liens (other than any lien imposed by ERISA) incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(iv) Easements, rights-of-way, restrictions and other similar charges or encumbrances not interfering with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(v) Liens existing on any property prior to the acquisition thereof, or prior to the acquisition of the entity which owns such property, by the Borrower or any of its Subsidiaries, in each case which lien was not created in contemplation of such acquisition;
(A) Purchase money liens or purchase money Liens security interests upon or in any personal property acquired or held by the Borrower or any Subsidiary of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing indebtedness incurred solely for the purpose of financing the acquisition of rights in or use of such property; , (B) liens consisting of the interests of lessors under Capitalized Leases and (ivC) Liens for taxesliens not otherwise described above in this Section 6.02(a); provided, assessments that the aggregate capitalized amount of Debt incurred pursuant to such Capitalized Leases, plus the aggregate principal amount of the indebtedness or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens obligations secured by any of carriers, warehousemen, mechanics, materialmen and landlords incurred the liens described in the ordinary course of business for sums not overdue, or any such Liens being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books (but only if such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secured obligations on surety or appeal bonds; and this clause (vi) judgment Liens in existence less than 30 days after (or, if greater, the entry thereof or with respect to which execution has been stayed or book value of the payment of which is covered in full (assets that are subject to a customary deductiblesuch liens) shall not exceed $20,000,000 at any time outstanding; and
(vii) Liens permitted by insuranceSection 6.02(h).
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdue, overdue and which have been in existence less than ninety days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Borrower or such Liens do notSubsidiary, individually or in to secure the aggregate, result in a Materially Adverse Change or materially adversely affect the rights utility obligations of Bank); (v) Liens any such Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Borrower or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Borrower or any of its Subsidiaries shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Borrower’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary of the Parent to secure not more than $300,000,000 aggregate principal amount of Debt (inclusive of any such liens held by the Parent and WPL) of any Foreign Subsidiary of the Parent; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(viii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $10,000,000 in the aggregate at any one time outstanding;
(ix) Liens incurred in connection with the sales of assets permitted in Section 5.2(d)(ix);
(x) Liens incurred in connection with Bonds and the Indenture;
(xi) Liens incurred by the Borrower or any of its Subsidiaries on assets of the Borrower and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed $100,000,000 outstanding at any one time;
(xii) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xiii) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the use by Borrower or any of its Subsidiaries of their respective properties;
(xiv) Liens on assets of any Subsidiary of the Borrower in favor of the Borrower or any wholly-owned Subsidiary of the Borrower;
(xv) Liens set forth in Schedule III hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto; and
(xvi) other Liens securing obligations of the Borrower and its Subsidiaries not to exceed more than five percent (5%) of the consolidated assets (valued at book value) of the Borrower and its Subsidiaries at any time.
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Liens, Etc. Create Create, incur, assume or suffer to existexist any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance, or permit any other similar type of its Subsidiaries to create or suffer to existpreferential arrangement in the nature of a security interest, any Lien upon or with respect to (i) any equity interest in any Material Subsidiary or (ii) any of the properties or rights of the Borrower or any Subsidiary of the Borrower (other than BGE and its propertiesSubsidiaries; it being agreed that Constellation Nuclear and its Subsidiaries are deemed Subsidiaries of the Borrower for purposes of this subsection (a)), whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, collaterally assign any right to receive income, services or property (any of the foregoing being referred to herein as a “Lien”), except that the foregoing restrictions shall not apply to Liens:
(i) for taxes, assessments or governmental charges, levies or fines (including such amounts arising under environmental law) on property of the Borrower or any Material Subsidiary if the same shall not at the time be delinquent or thereafter can be paid without a material penalty, or are being contested in good faith and by appropriate proceedings;
(ii) imposed by law, such as carriers’, warehousemen’s, landlords’, repairmen’s, materialmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business;
(iii) arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, compensation arrangements, supplemental retirement plans not otherwise permitted under clause (xxi) below or other social security or similar legislation;
(iv) to secure obligations with respect to any (i) Hedge Agreement or other contract or agreement for the purchase, transmission, transportation, distribution, sale, lease, storage or hedge of any energy-related commodity or service (whether any such contract provides for physical delivery), option (whether cash or financial)), bid, tender, contract (other than contracts for the repayment of borrowed money), lease, trading contract, surety or appeal bond, performance bond or similar bond or other similar obligation made in the ordinary course of business, and (ii) reimbursement obligation in respect of letters of credit issued to support the obligations described in the foregoing clause (i), in the case of each case of clause (i) and clause (ii), secured by Liens on assets constituting (x) deposits or balances of cash and cash equivalents (including those in any margin account), (y) Permitted Collateral and (z) revenues, receivables, payments, general intangibles and rights under or related to any such contract or agreement described in clause (i) in favor of any counterparty under any such contract or agreement, any trading counterparty, brokerage, clearing house, utility, systems operator, transmission provider, energy market administrator and similar entity (for the avoidance of doubt, the ERCOT program and any other similar agreement or arrangement, including with any Independent System Operator, are permitted under this clause (iv));
(v) to secure any indebtedness obligation incurred solely for the purpose of acquiring or financing the acquisition of equipment by the Borrower or any Material Subsidiary in the ordinary course of business (with equipment acquired in the ordinary course of business to include, without limitation, items such as computer equipment, vehicles, office equipment and communications equipment for the use of the Borrower and its Subsidiaries, and to exclude, without limitation, items such as turbines, power plants, interconnection facilities and transmission facilities) , and extensions of such Liens; provided, that no such Lien shall exceed the fair market value of the equipment acquired (as determined at the time of purchase) or extend to or cover any property other than the equipment being acquired;
(vi) constituting attachment, judgment and other similar Liens arising in connection with court proceedings to the extent not constituting an Event of Default under Section 6.01(g);
(vii) constituting easements, exceptions, restrictions, reservations, zoning restrictions and other similar encumbrances, including for the purposes of roads, sewers, pipelines, transmission lines, distribution lines, transportation lines or removal of minerals or timber or for other like purposes or for the joint or common ownership and/or use of property, rights of way, facilities and/or equipment, and defects, irregularities and deficiencies in title of any Person other than property and/or rights of way, which in the aggregate do not materially adversely affect the Borrower’s or any Material Subsidiary’s use of its properties;
(iviii) Liens created by any Subsidiary of the Borrower in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by the Borrower or any wholly-owned Subsidiary of the Borrower;
(ix) on any assets and revenues of a Person existing at the time such Person is merged into or consolidated with the Borrower or any of its Subsidiaries or becomes a Subsidiary of the Borrower or any of its Subsidiaries, and which Lien is not created in contemplation of such event;
(x) created in the ordinary course of business to secure liability to insurance carriers and Liens on insurance policies and the purchase price proceeds thereof (whether accrued or not), rights or claims against an insurer or other similar asset securing insurance premium financings;
(xi) in favor of such property or customs and revenue authorities arising as a matter of law to secure purchase money financing incurred solely for payment of customs duties in connection with the purpose importation of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies not yet due or thereafter payable without penalty, or Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred goods in the ordinary course of business for sums not overduebusiness;
(xii) in the nature of rights of setoff, bankers’ liens, revocation, refund, chargeback, counterclaim, netting of cash amounts or any such Liens being diligently contested in good faith by appropriate proceedings similar rights as to deposit accounts, commodity accounts or securities accounts or other funds maintained with a credit or depository institution;
(xiii) on assets securing other obligations of the Borrower and for which adequate reserves in accordance with GAAP shall have been set aside on its books Subsidiaries (but only including project finance debt and acquisition debt) if such obligations, calculated on a quarterly basis, are not greater than 17% of consolidated assets of the Borrower and its Subsidiaries (excluding BGE and its Subsidiaries), as reflected on the then-most-recent quarterly balance sheet of the Borrower, as adjusted to give pro forma effect to any acquisitions of assets since the date of such balance sheet, and provided that, such obligations of Constellation Nuclear and its Subsidiaries will be included in such 17% basket only to the extent of the Borrower’s proportional interest in Constellation Nuclear and its Subsidiaries, and provided further, that the obligations in respect of any Securitization by any Person will be included in such 17% basket in an amount equal to the principal amount of the Indebtedness incurred in connection with such Securitization;
(xiv) consisting of pledges of Bonds arising out of any Pledge Agreement and similar pledges of other industrial development, pollution control or similar revenue bonds in connection with the remarketing of such bonds;
(xv) created under Section 6.02(b) on the Cash Collateral Account and similar cash collateralization obligations relating to defaulting lenders and remedies upon default;
(xvi) to the extent constituting Liens, created in connection with sales, transfers, leases, assignments or other conveyances or dispositions of assets permitted under Section 5.02(c), including (x) Liens do noton assets or securities granted or deemed to arise in connection with and as a result of the execution, individually delivery or in the aggregateperformance of contracts to purchase or sell such assets or securities if such purchase or sale is otherwise permitted hereunder, result in a Materially Adverse Change or materially adversely affect the and (y) rights of Bank); first refusal, options or other contractual rights or obligations to sell, assign or otherwise dispose of any interest therein, which rights arise in connection with a sale, transfer or other disposition of assets permitted hereunder;
(vxvii) Liens incurred in to the extent constituting Liens, arising under leases or subleases, licenses or sublicenses granted to others that do not materially interfere with the ordinary course of business of the Borrower and its Material Subsidiaries;
(xviii) to the extent constituting Liens, resulting from any restriction on any equity interest (or project interest, interests in connection with workmen's compensationany energy facility (including undivided interests)) of a Person providing for a breach, unemployment insurance termination or default under any owners, participation, shared facility, joint venture, stockholder, membership, limited liability company or partnership agreement between such Person and one or more other holders of equity interest (or project interest, interests in any energy facility (including undivided interests)) of such Person, if a security interest or other forms Lien is created on any such interest as a result thereof;
(xix) granted on any equity interest in Unistar, provided that Unistar is primarily engaged at such time in financing, developing, owning, and operating new nuclear projects in the United States and Canada;
(xx) granted on cash or cash equivalents to defease or repay Indebtedness of the Borrower or any of its Subsidiaries no later than 60 days after the creation of such Lien;
(xxi) permitted under Section 5.02(d)(v);
(xxii) existing on any asset prior to the acquisition thereof by the Borrower or any of its Subsidiaries and not created in contemplation of such acquisition; or
(xxiii) to the extent constituting Liens, (A) any right reserved to or vested in any municipality or other governmental insurance or benefitspublic authority (1) by the terms of any right, power, franchise, grant, license or permit granted or issued to the Borrower or its Subsidiaries or (2) to purchase or recapture or to secure performance designate a purchaser of statutory obligations, leases and contracts any property of the Borrower or its Subsidiaries; (B) rights reserved to or vested in any municipality or other than for borrowed money) entered into in governmental or public authority to control or regulate any property of the ordinary course of business Borrower or its Subsidiaries or to secured obligations on surety use such property in a manner that does not materially impair the use of such property for the purposes for which it is held by the Borrower or appeal bondsits Subsidiaries; and (viC) judgment Liens in existence less than 30 days after securing obligations or duties of the entry thereof Borrower or with respect its Subsidiaries to which execution has been stayed any municipality or other governmental or public authority that arise out of any franchise, grant, license or permit and that affect any property of the payment of which is covered in full (subject to a customary deductible) by insuranceBorrower or its Subsidiaries.
Appears in 1 contract
Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries or any other Loan Party to create or suffer to exist, any Lien upon or with respect to any of its their properties, rights or other assets, whether now owned or hereafter acquired, or assignassign or otherwise transfer, or permit any of its Subsidiaries to assignassign or otherwise transfer, any right to receive income, in each case to secure any indebtedness of any Person other than the following Liens (i"PERMITTED LIENS"):
(a) Liens in favor of Bank; created pursuant to the Loan Documents;
(iib) Liens reflected existing on SCHEDULE 6.2(C) the date hereof, as set forth in Schedule 8.01 hereto; ;
(iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (ivc) Liens for taxes, assessments or other governmental charges or levies to the extent that the payment thereof shall not yet due or thereafter payable without penaltybe required by Section 7.02 hereof;
(d) Liens created by operation of law other than Environmental Liens, or Liens such as liens of materialmen, mechanics, carriers, warehousemen, mechanicssuppliers, materialmen and landlords incurred other similar liens, arising in the ordinary course of business which secure amounts not overdue for sums not overdue, a period of more than thirty (30) days or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books proceedings;
(but only if such e) deposits, pledges or Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (vother than Liens arising under ERISA) Liens securing (1) obligations incurred in the ordinary course respect of business in connection with workmen's workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure (2) the performance of statutory obligationsbids, leases and tenders, leases, contracts (other than for borrowed the payment of money) entered into and statutory obligations, or (3) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business or to secured and secure obligations which are not past due;
(f) restrictions on surety or appeal bonds; the use of Real Estate and minor irregularities in the title thereto which (vi1) judgment Liens in existence less than 30 days after the entry thereof or with respect to which execution has been stayed or do not secure obligations for the payment of which is covered money, other than those created pursuant to the Loan Documents or are permitted under clauses (b) and (j) of this Section 8.01 or (2) do not materially impair the value of such Real Estate or its use by the Borrower or any of its Subsidiaries in full the normal conduct of such Person's business;
(subject g) purchase money Liens on or purchase money security interests in equipment or Real Estate acquired or held in the ordinary course of its business securing Indebtedness, PROVIDED that the Indebtedness secured by such Liens or security interests shall not exceed the aggregate principal amount of $100,000 per annum;
(h) Liens securing Capitalized Leases to the extent permitted under Section 8.13;
(i) Liens created pursuant to a customary deductiblecertain Escrow Agreement dated as of November 30, 1999 among the Borrower, Parent, Artech Capital Corporation, and Bankers Trust Company as escrow agent under an Asset Purchase Agreement dated as of Novem ber 10, 1999 among the Borrower, Parent and Artech Capital Corporation;
(j) Liens on Real Estate of the Borrower which secure Indebtedness incurred by insurancethe Borrower;
(k) [Intentionally left blank];
(l) Liens upon any property or assets of any Subsidiary of the Borrower existing at the time such Subsidiary is acquired by, merged into or consolidated with the Borrower in accordance with the terms of this Agreement, PROVIDED that such Liens were not created in contemplation of any such acquisition, merger or consolidation;
(m) pre-existing Liens upon any property or assets existing at the time such property or assets are acquired by the Borrower, PROVIDED that such Liens were not created in contemplation of such acquisition;
(n) Liens created pursuant to the Senior Notes Collateral Agreement; and
(o) renewals and replacements of the Liens described in clauses (b), (g), (f), (l), (m) and (n) of this Section 8.01, PROVIDED that any such renewal or replacement Lien shall be limited to the property or assets covered by the Lien renewed or replaced and the Indebtedness secured by any such renewal or replacement Lien shall be in an amount not greater than the amount of Indebtedness secured by the Lien renewed or replaced.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Golden Books Family Entertainment Inc)
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Guarantor or any Subsidiary, or to secure the utility obligations of any such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Guarantor or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Guarantor’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(x) Liens in favor of Xxxxx Fargo (or any successor thereto), as agent under (i) the Utility Facilities to secure the obligations of the respective Utilities thereunder and (ii) the Guarantor Facilities to secure the obligations of the Guarantor thereunder;
(xi) Liens incurred in connection with the sales of assets permitted in Section 5.2(d)(ix);
(xii) Liens incurred by the Guarantor or any of its Subsidiaries on assets of the Guarantor and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of the Guarantor and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time
(xiii) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xiv) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the Guarantor’s use of its properties;
(xv) Liens set forth in Schedule III hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto; and
(xvi) other Liens securing obligations of the Guarantor and its Subsidiaries not to exceed more than five percent (5%) of the consolidated assets (valued at book value) of the Guarantor and its Subsidiaries at any time.
Appears in 1 contract
Liens, Etc. Create Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create create, incur, assume, or suffer to exist, any Lien lien, security interest, or other charge or encumbrance (including the lien or retained security title of a conditional vendor) of any kind, or any other type of arrangement intended or having the effect of conferring upon a creditor a preferential interest upon or with respect to any of its propertiesproperties of any character (including, whether now owned or hereafter acquiredwithout limitation, or assign, or permit accounts) (any of its Subsidiaries the foregoing being referred to assignherein as a “Lien”), any right to receive incomeexcluding, in each case to secure any indebtedness however, from the operation of any Person other than the foregoing restrictions the Liens created under the Loan Documents and the following:
(i) Liens in favor of Bank; (ii) Liens reflected on SCHEDULE 6.2(C) hereto; (iii) purchase money Liens upon or in any personal property acquired or held by Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or to secure purchase money financing incurred solely for the purpose of financing the acquisition of rights in or use of such property; and (iv) Liens for taxes, assessments or other governmental charges or levies to the extent not yet due or thereafter payable without penaltypast due;
(ii) Liens imposed by law, or Liens of carriers, warehousemensuch as materialmen’s, mechanics’, materialmen carriers’, workmen’s and landlords incurred repairmen’s liens and other similar Liens arising in the ordinary course of business for sums securing obligations which are not overdueoverdue and which have been in existence less than ninety days, or any such Liens which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP shall have been set aside on its books (but only if so required);
(iii) pledges or deposits to secure obligations under workmen’s compensation laws or similar legislation, to secure public or statutory obligations of the Guarantor or any Subsidiary, or to secure the utility obligations of any such Liens do not, individually or in the aggregate, result in a Materially Adverse Change or materially adversely affect the rights of Bank); (v) Liens Subsidiary incurred in the ordinary course of business business;
(iv) (A) purchase money Liens upon or in connection with workmen's compensation, unemployment insurance property now owned or other forms hereafter acquired by the Guarantor or any of governmental insurance or benefits, or to secure performance of statutory obligations, leases and contracts (other than for borrowed money) entered into its Subsidiaries in the ordinary course of business (consistent with present practices, it being understood that for purposes of this clause, the purchase, construction or maintenance of generating facilities by the Utilities shall be deemed to secured obligations be in the ordinary course of business and consistent with present practices) to secure (1) the purchase price of such property or (2) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such Liens, or (B) Liens existing on surety any such property at the time of acquisition, or appeal bonds; extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved and replacements, modifications and proceeds of such property, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced;
(v) Liens on the capital stock of any of the Guarantor’s single-purpose Subsidiaries or any such Subsidiary’s assets to secure the repayment of project financing or Nonrecourse Debt for such Subsidiary;
(vi) attachment, judgment or other similar Liens arising in existence less than 30 days after connection with court proceedings, provided that the entry thereof execution or with respect to which execution has been other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith by appropriate proceedings or the payment of which is covered in full (subject to a customary deductibledeductible amounts) by insuranceinsurance maintained with responsible insurance companies;
(vii) Liens securing obligations under agreements entered into pursuant to the Iowa Industrial New Jobs Training Act or any similar or successor legislation, provided that such obligations do not exceed $5,000,000 in the aggregate at any one time outstanding;
(viii) Liens created pursuant to the Mortgage Bond Indentures;
(ix) Liens on the ownership interests in, and the assets of, any Foreign Subsidiary to secure not more than $300,000,000 aggregate principal amount of Debt of any Foreign Subsidiary; provided that in the event any such Debt is not denominated in Dollars, the calculation of the Dollar equivalent amount of such Debt shall be made as of the date of the incurrence of such Lien securing such Debt;
(x) Liens in favor of Xxxxx Fargo Bank, National Association (or any successor thereto), as agent under the Master Credit Facility to secure the obligations of the Guarantor or the respective Utilities thereunder;
(xi) Liens incurred in connection with the sales of assets permitted in Section 5.2(d)(viii);
(xii) Liens incurred by the Guarantor or any of its Subsidiaries on assets of the Guarantor and its Subsidiaries to secure Nonrecourse Debt or obligations other than for borrowed money, in an aggregate principal amount not to exceed (x) in the case of the Guarantor and all its Subsidiaries other than the Utilities and their respective Subsidiaries, $100,000,000 outstanding at any one time, and (y) in the case of each Utility and its Subsidiaries, $100,000,000 outstanding at any one time
(xiii) Liens on nuclear fuel granted in connection with any financing arrangement for the purpose of purchasing or leasing such nuclear fuel;
(xiv) Liens constituting easements, restrictions and other similar encumbrances arising in the ordinary course of business, which in the aggregate do not materially adversely affect the Guarantor’s use of its properties;
(xv) Liens set forth in Schedule II hereto, and any extensions, renewals, refinancing or replacements of any such Liens upon or in the same property theretofore subject thereto;
(xvi) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code or similar Lien in any foreign jurisdiction on items in the course of collection and normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(xvii) other Liens securing obligations of the Guarantor and its Subsidiaries not to exceed more than ten percent (10%) of the consolidated tangible assets (valued at book value) of the Guarantor and its Subsidiaries at any time.
Appears in 1 contract
